**Exhibit 2.5**

 

**EXECUTION COPY**

 

**ASSETPURCHASE AGREEMENT**

 

This Asset PurchaseAgreement dated as of March 9, 2010 (this “Agreement”), is enteredinto between Agilent Technologies, Inc., a Delaware corporation (the “Seller”)and Bruker Corporation, a Delaware corporation (the “Purchaser”) (each,a “Party” and collectively, the “Parties”).

 

**W I T N E S S E T H:**

 

**WHEREAS**, Seller has agreed to acquire Varian, Inc.(“Varian”) pursuant to a merger of Cobalt Acquisition Corp., awholly-owned subsidiary of Seller with and into Varian, with Varian to be thesurviving corporation of such merger (the “Varian Merger”), under theterms and conditions of that certain Agreement and Plan of Merger dated as of July 26,2009 among Seller, Varian and Cobalt Acquisition Corp. (the “Varian MergerAgreement”).

 

**WHEREAS**, Varian and certain direct and indirectSubsidiaries of Varian are engaged in, among other things, the Business (asdefined below) and, following the consummation of the Varian Merger, Sellerdesires to divest such Business;

 

**WHEREAS**, Purchaser, through itself and one ormore of its direct or indirect Subsidiaries, desires to purchase and assume,and Seller, through itself and one or more of its direct or indirectSubsidiaries (which, as of the closing of the transactions contemplated herein,will include Varian and its Subsidiaries as a result of the prior consummationof the Varian Merger), desires to sell, transfer and assign the PurchasedAssets and the Assumed Liabilities of the Business to Purchaser and one or moreof its Subsidiaries, upon the terms and subject to the conditions specified inthis Agreement;

 

**NOW,THEREFORE**, inconsideration of the mutual covenants herein contained and other good andvaluable consideration, the receipt and sufficiency of which are herebyacknowledged, the Parties agree as follows:

 

ARTICLE I

 

DEFINITIONS ANDRULES OF CONSTRUCTION

 

1.1                                         Definitions.

 

Unless otherwise providedherein, capitalized terms used in this Agreement have the meanings ascribed tothem by definition in this Agreement or in Annex A.

 

1.2                                         Rules of Construction.

 

(a)                                  This Agreement shall be construed withoutregard to any presumption or rule requiring construction or interpretationagainst the Party drafting or causing any instrument to be drafted.

 

(b)                                 This Agreement does not, and is notintended to, confer any rights or remedies in favor of any person other thanthe parties signing this Agreement, except as may be specifically set forth inother provisions of this Agreement.

 

(c)                                  The words “hereof, “herein” and “hereunder”and words of similar import when used in this Agreement will refer to thisAgreement as a whole (including any annexes, exhibits and schedules to 

 

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this Agreement) and notto any particular provision of this Agreement, and section and subsectionreferences are to this Agreement unless otherwise specified. The words “include”,“including”, or “includes” when used herein shall be deemed in each case to befollowed by the words “without limitation” or words having similar import.  The headings and table of contents in thisAgreement are included for convenience of reference only and will not limit orotherwise affect the meaning or interpretation of this Agreement.  The meanings given to terms defined herein willbe equally applicable to both the singular and plural forms of such terms.

 

(d)           Any reference in this Agreement to wiretransfers or other payments requires payment in dollars of the United States ofAmerica unless some other currency is expressly stated in that reference.

 

ARTICLE II

 

SALE OF ASSETS ANDASSUMPTION OF LIABILITIES

 

2.1              Asset Purchase. Upon the terms and subject to theconditions set forth in this Agreement and in the Intellectual Property MattersAgreement in the form attached hereto as Exhibit A (the “IPMA”) asapplicable, at the Closing (as defined below), Seller shall or shall cause oneor more of its Subsidiaries to sell, assign, transfer, convey and deliver tothe Purchaser, and Purchaser or a designated Subsidiary of Purchaser shallacquire and accept from Seller or such Subsidiaries, all of Seller’s and suchSubsidiaries’ respective right, title and interest in and to the followingassets and properties, free and clear of Liens other than Permitted Liens (allsuch assets collectively referred to herein as the “Purchased Assets”):

 

(i)                                     those current product lines of Seller,and those discontinued, predecessor and legacy product lines of the Businessfrom the prior ten (10) years (the “Discontinued Products”), ineach case described on Schedule 2.1(i) of the Disclosure Letter(collectively, the “Seller Products”);

 

(ii)                                  the tangible personal property assets ofSeller listed on Schedule 2.1(ii) of the Disclosure Letter,including the fixed assets listed therein (the “Tangible Assets”);

 

(iii)                               all inventory, raw materials, works inprogress and finished goods exclusively relating to any of the Seller Productsor otherwise exclusively relating to the Business that exist as of the ClosingDate (the “Inventory Assets”); provided that with respect to any and alltriple-quadrupole (“QQQ”) mass spectrometry (“MS”) related inventories whichcould be used for either the GC-QQQ-MS product line (which constitutes a SellerProduct) or the LC-QQQ-MS product line (which does not constitute a SellerProduct), (A) inventory which is designated in the applicable productionforecasts of the Varian Companies as being for GC-QQQ-MS shall constituteInventory Assets hereunder and inventory which is designated in such productionforecasts as being for LC-QQQ-MS shall not constitute Inventory Assets hereunder,and (B) inventory which is either designated in the applicable productionforecasts of the Varian Companies as being for both GC-QQQ-MS and LC-QQQ-MS, orinventory which is not designated for either such product line, shall beallocated as Inventory Assets hereunder and non-Inventory Assets on the basisof the ratio of the total inventory designated for GC-QQQ-MS to the totalinventory designated for LC-QQQ-MS in Varian’s fiscal year 2009;

 

(iv)                              true and complete copies of all Seller’scustomer list, customer lead list, finished goods inventory list, productiondata, manuals and engineering records and other business records that, in eachcase, exclusively relate to, or are solely used in the operation of theBusiness (including but not limited to any such records and information thatare exclusively related to the Purchased Assets) (collectively, the “BusinessRecords*”) provided,**however,*that the Business Records shall not include any (i) employee-related oremployee benefit-related files or records, employee benefit plans or documentsrelating to commitments and arrangements with employees of Seller or itsAffiliates, except for personnel 

 

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files for TransferredEmployees, or (ii) books and records that relate to or include informationof third parties that is subject to a confidentiality agreement that is not aPurchased Asset; *provided further* that Sellershall retain a copy of any Business Records which are necessary or desirablefor tax reporting purposes or for responding to queries or claims with respectto the conduct of the Business prior to the Closing or the defense of anyclaims under the terms of this Agreement or any other Transaction Document; and*provided further* that it is acknowledged,agreed and understood by Purchaser that Business Records relating toDiscontinued Products will be transferred by Seller only to the extent thatsuch Business Records exist as of the Closing and can be located throughcommercially reasonable efforts  on thepart of Seller;

 

(v)                                 all unfulfilled customer purchase andsupply orders of the Business as of the Closing Date which shall constituteAssumed Contracts hereunder;

 

(vi)                              the rights of Seller or any Subsidiary ofSeller under those Contracts listed on Schedule 2.1(vi) of theDisclosure Letter to the extent that such rights are applicable to the Businessand assignable to Purchaser (collectively, the **“**AssumedContracts**”);**

 

(vii)                           the Transferred Intellectual PropertyRights described in Schedule 2.1(vii) of the Disclosure Letter;

 

(viii)                        the Licensed Intellectual Property Rightsas described in the IPMA;

 

(ix)                                the Transferred Licenses described in Schedule2.1(ix) of the Disclosure Letter, which shall also be deemed toconstitute Assumed Contracts hereunder;

 

(x)                                   all of the following finished goodsinventory to the extent that such items are already bolted to, attached to, puton or otherwise part of a Seller Product or in final test or production for useon or in connection with a Seller Product as of the Closing: SPS3 samplechangers; autosamplers; autoinjectors; Lab GC accessories; and Lab GCconsumables;

 

(xi)                                all demonstration and research inventoryto the extent substantially related to or substantially used in the Business,whether located in the field organization or otherwise (including SPS3 samplechangers, autosamplers, autoinjectors, Lab GC accessories, and Lab GCconsumables which form part of Seller Products included in such inventory inthe manner described in clause (x) above);

 

(xii)                             all spare parts for the Business(including spare parts for any Discontinued Products), whether available at thefactories or field offices of the Business or otherwise; provided that, withrespect to any and all triple-quadrupole mass spectrometry related spare partswhich could be used for either the GC-QQQ-MS products or the LC-QQQ-MS products(the “***QQQ-MS Spare Parts***”), suchQQQ-MS Spare Parts shall be allocated between Seller and Purchaser based uponthe percentage of the total number of QQQ-MS Spare Parts that were used solelyfor the GC-QQQ-MS product line (the “***GC-QQQ Portion***”)relative to the percentage of the total number of QQQ-MS Spare Parts that wereused solely for the LC-QQQ-MS product line relative to the percentage of thetotal number of QQQ-MS Spare Parts that were used for combinedGC-QQQ-MS/LC-QQQ-MS products (the “***Combined QQQ-MS Portion***”),in each case, during Varian’s fiscal year 2009, such that the number of QQQ-MSSpare Parts held by Seller and/or its Affiliates as of the Closing (the “***Closing QQQ-MS Spare Parts***”) thatare transferred to Purchaser hereunder shall be the sum of (x) the GC-QQQPortion of the Closing QQQ-MS Spare Parts plus (y) a portion of theClosing QQQ-MS Parts equal to the Combined QQQ-MS Portion thereof multiplied bythe quotient obtained by dividing (I) the total number of QQQ-MS SpareParts that were used solely for the GC-QQQ-MS product line in Varian’s fiscalyear 2009 by (II) the total number 

 

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of QQQ-MS Spare Parts thatwere used for both the GC-QQQ-MS products and the LC-QQQ-MS products in Varian’sfiscal year 2009;

 

(xiii)                          true and complete copies of customerlists, invoices, manuals, production data or other technical business recordsfor SPS3 sample changers, autosamplers or autoinjectors that were soldexclusively for use with Seller Products only to the extent that such recordsexist and can be located through commercially reasonable efforts on the part ofSeller and clearly indicate on the face of such documentation that suchinstruments were sold for use with a Seller Product;

 

(xiv)                         all service, maintenance and supportcontracts of Seller and/or its Affiliates that exclusively relate to SellerProducts and which are in effect as of the Closing, including, withoutlimitation, any of the same with respect to Discontinued Products (the “***Service Contracts***”); provided,however, that Service Contracts which are not assignable by their terms and/orService Contracts of any customer who has objected (whether before or after tothe Closing) to the assignment of such Service Contract to the Purchaserhereunder shall in each case be deemed not to have been assigned to Purchaserhereunder and shall be handled in accordance with Section 2.5; andprovided, further, that, to the extent there are Service Contracts which coverboth Seller Products and products of Seller and/or its Affiliates which are notSeller Products, following the Closing the parties shall consult and co-operatetogether to divide such Service Contracts on an equitable basis such thatPurchaser will service any Seller Products and Seller and/or its Affiliateswill service any other products under such Service Contracts;

 

(xv)                            the following documentation thatexclusively relates to the Seller Products and that is owned by and in thepossession of Seller as of the Closing: manufacturing documentation, including,without limitation, all records relating to the radioactive elements of theICP-MS, hardware and firmware development documentation, software developmentdocumentation solely related to the software listed in Schedule 2.1(vii) ofthe Disclosure Letter, product safety documentation (relating to CE, UL/CSA,ETL, etc. standards), export control licenses and related export and importdocumentation, and marketing, sales and service documentation; and

 

(xvi)                         all goodwill associated with any of theassets described in the foregoing subparagraphs (i) through (xv).

 

Notwithstanding anythingherein to the contrary, it is understood and agreed that Seller shall only beobligated to use commercially reasonable efforts to locate and deliver theitems described in clauses (iv), (xi), (xii), (xiii) and (xv) of this Section 2.1to Purchaser at the Closing and shall, following the Closing, promptly deliverany such items to Purchaser that, within sixty (60) days after the Closing, areidentified by either Seller or Purchaser as still being in Seller’s possessionfollowing the Closing (with such identification to have sufficient specificityas to location of the relevant item so as to enable Seller to readily find,obtain and transfer same). Except as expressly provided in this paragraph,Seller shall have no liability whatsoever under this Agreement or otherwise forany failure to transfer or deliver the items described in clauses (xi), (xii),(xiii) and (xv) of this Section 2.1 to Purchaser either at or followingthe Closing.

 

2.2                                         Excluded Assets. All assets of Seller and its Affiliates not specifically included in thePurchased Assets described in Section 2.1 above shall be retained bySeller and its Affiliates and are not being acquired by Purchaser and shall bereferred to collectively herein as the ***“Excluded Assets”****. *The Excluded Assetsshall include, without limitation, the following:

 

(i)                                     all cash, cash equivalents, bank accountsand securities;

 

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(ii)                                  All accounts receivable, notes and otherreceivables, including, without limitation, all receivables relating to theBusiness or the Purchased Assets, and tax refunds, unearned insurance premiumrefunds and other rights to payment relating to the Business, in each case,that are  incurred, issued or created onor prior to the Closing;

 

(iii)                               all insurance policies and all rights ofSeller and its Affiliates of every nature and description under or arising outof such insurance policies;

 

(iv)                              all prepaid assets except as contemplatedpursuant to Section 6.13(c) or Section 6.13(d);

 

(v)                                 All rights under or with respect to anyclaims, causes of action, choses in action, rights of recovery, rights ofset-off and other rights of recoupment (including any such items relating tothe payment or refund of Taxes, security or similar deposits and all insurancepolicies of Seller, and all rights and claims thereunder);

 

(vi)                              all real property, and all real propertyleasehold or license interests, wherever located, including, withoutlimitation, all buildings and other structures, facilities or improvementslocated on such real property, all fixtures attached or appurtenant thereto,and all easements, licenses, rights and appurtenances relating to theforegoing;

 

(vii)                           All personal property other than theTangible Assets and the Inventory;

 

(viii)                        Any user information or data associatedwith or derived from the internet websites of Seller or its Affiliates;provided, however, that such information and data, together with the customerlists and the customer lead lists described in Section 2.1(iv), shallconstitute, effective as of the Closing, “confidential information” ofPurchaser, and shall be subject to the restrictions on use by the Sellerthereof, pursuant to the terms of the Confidential Disclosure Agreement dated January 6,2010 between the Parties, it being understood that Seller and its Affiliateswill not use any of the same for the purpose of reproducing the customer listof the Business, provided further that it is understood, acknowledged andagreed by Purchaser that the customer lists of Seller and its Affiliates forother products may include some or all of the customers of the Business;

 

(ix)                                the minute books, stock ledgers and Taxrecords of Seller and its Affiliates;

 

(x)                                   all employee-related or employeebenefit-related files or records, all employee benefit plans and arrangements,and all assets of, or held by or with respect to, any employee benefit plan(whether or not governed by ERISA) or any trust, fund or account that isrelated to any such employee benefit plan or that is similar in purpose orfunction thereto, except for personnel files of Transferred Employees;

 

(xi)                                All assets, including those related to ITsystems, logistics, back office and overhead functions, used in connection withthe centralized management functions provided by Seller and its Affiliates tothe Business;

 

(xii)                             all rights of Seller and/or its Affiliatesunder this Agreement, any of the Ancillary Agreements and/or any instrument orcertificate delivered in connection with this Agreement or any of the AncillaryAgreements, and all records prepared in connection with the transactionscontemplated hereby;

 

(xiii)                          all product lines of Seller and/or itsAffiliates other than the Seller Products;

 

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(xiv)                         all rights relating to ExcludedLiabilities;

 

(xv)                            assets provided through services orlicenses provided or licensed by Seller to Purchaser under the TransitionServices Agreement; and

 

(xvi)                         all items listed in Schedule 2.2(xvii)of the Disclosure Letter, as such schedule may be amended upon the mutualagreement of the Parties prior to the Closing.

 

2.3                                         Assumption by Purchaser of CertainLiabilities; Retention by Seller of Remaining Liabilities.

 

(a)                                  Upon the terms and subject to theconditions set forth in this Agreement and in the IPMA, as applicable, at theClosing, the Purchaser****shall assume,pay, perform and discharge when due any and all Liabilities of Seller and itsAffiliates to the extent arising out of or relating to the Business or thePurchased Assets on or after the Closing, other than the Excluded Liabilities(the “Assumed Liabilities”). Without in any way limiting the generality of the foregoing, the AssumedLiabilities shall include the following:

 

(i)                                     all Liabilities of Seller or of any ofits Affiliates under the Assigned Contracts, but only to the extent that suchLiabilities (A) arise, are incurred or require performance of an actionafter the Closing, and (B) do not arise or result from any breach, defaultor violation prior to the Closing by Seller or any Affiliate of Seller of anyAssigned Contract;

 

(ii)                                  all Liabilities arising after the ClosingDate for any infringement or alleged infringement with respect to the Businessor the Purchased Assets of (A) any right of any other Person relating tothe IP Rights, or (B) any right of any other Person pursuant to anylicense, sublicense or agreement relating to the IP Rights including theTransferred Licenses;

 

(iii)                               (A) all Liabilities of Seller andits Affiliates in respect of the Seller Products sold by the Business at anytime for exchanges, returns and warranty claims arising on, prior to or afterthe Closing Date and (B) all Liabilities of Seller and its Affiliates forany refunds, adjustments, allowances, merchantability and other similar claims(“***Other Claims***”) arising on or afterthe Closing to the extent the amount of such Other Claims exceeds $500,000 (theLiabilities referred to in (A) and (B) collectively, the “***Warranty Obligations***”);

 

(iv)                              all Liabilities of Seller and itsAffiliates under the Service Contracts assumed by Purchaser hereunder;

 

(v)                                 except as otherwise expressly provided inSection 6.6 and 6.7 hereof and except for commissions due to TransferredEmployees for sales made prior to the Closing Date, all Liabilities relating toany Transferred Employee;

 

(vi)                              all Liabilities assumed by Purchaserunder the terms of this Agreement or any other Ancillary Agreement;

 

(vii)                           any Liabilities with respect toDiscontinued Products;

 

(viii)                        all other Liabilities to the extentarising out of or relating to or incurred in connection with the Business afterthe Closing, including (A) the operation of the Business after theClosing, (B) the use of any of the Transferred Intellectual PropertyRights or Licensed Intellectual 

 

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Property Rights byPurchaser or permissible licensees and (C) any condition arising after theClosing with respect to the Purchased Assets.

 

(b)                                 The parties agree that, except for theLiabilities of Seller and its Affiliates described above in Section 2.3(a),Purchaser shall not assume, pay, perform or discharge or otherwise have anyobligation or liability for, any and all Liabilities of Seller or any Affiliateof Seller (whether now existing or hereafter arising), and Seller and itsAffiliates shall retain, and shall be solely responsible and liable for paying,performing and discharging when due, all Liabilities of Seller or itsAffiliates arising out of or relating to the Business or the Purchased Assetsprior to the Closing (collectively, the “Excluded Liabilities”),including but not limited to the following Liabilities:

 

(i)                                     any Liability to the extent arising outof or relating to the operation or conduct by Seller or any of its Affiliatesof any businesses other than the Business;

 

(ii)                                  subject to the provisions of Section 2.5hereof, any Liability to the extent arising out of or relating to any ExcludedAsset;

 

(iii)                               any Liability in respect of Taxes thatare to be borne by Seller pursuant to Section 6.11(b) and anyLiability for Taxes payable by any of its Affiliates relating to a Pre-ClosingTax Period;

 

(iv)                              except as provided for in Section 6.6or 6.7, all Liabilities to or in respect of any current or former employees ofSeller or any of its Affiliates;

 

(v)                                 except as provided for in Section 6.6and 6.7, all Liabilities under any Seller Plans, including any pension orretirement plan, severance plan, retention plan, workers compensation, medical,life insurance, disability or other welfare plan, expenses and benefitsincurred or claimed in respect of any Transferred Employee or other current orformer employee of Seller or any of its Subsidiaries, and any claims by suchTransferred Employees, their covered dependents, or any other current or formeremployees of Seller or any of its Subsidiaries, for benefits or claims arisingon or prior to the Closing Date;

 

(vi)                              any Liability arising out of anyEnvironmental Claim;

 

(vii)                           any Liability to any broker, finder oragent for any investment banking or brokerage fees, finder’s fees or commissionand any other fees and expenses payable by Seller pursuant to Section 11.7with respect to the transactions contemplated by this Agreement;

 

(viii)                        except as provided in Sections 2.5, 6.6or 6.7, any Liabilities with respect to Contracts other than Assumed Contracts,the Service Contracts and the Warranty Obligations; and

 

(ix)                                any Liabilities for Other Claims arisingon or after the Closing up to a maximum amount of $500,000 (it being understoodthat Purchaser shall be responsible for any amount of Other Claims that exceedssuch amount).

 

2.4                                         Transfer.

 

(a)                                  The Purchased Assets shall be sold,conveyed, transferred, assigned and delivered, and the Assumed Liabilitiesshall be assumed, pursuant to transfer and assumption agreements and such otherinstruments in such form as may be necessary or appropriate to effect aconveyance of the Purchased Assets and an assumption of the Assumed Liabilitiesin the jurisdictions in which such transfers are to be 

 

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made.  Such transfer and assumption agreements shallbe in a form mutually agreed by the Parties and shall include:  (i) a bill of sale in substantially theform attached hereto as Exhibit B (the “Bill of Sale”), (ii) anassignment and assumption agreement in substantially the form attached heretoas Exhibit C (the “Assignment and Assumption Agreement”), (iii) tothe extent required by Law, local asset transfer agreements for eachjurisdiction other than the United States in which Purchased Assets or AssumedLiabilities are located in substantially the form attached hereto as Exhibit Dwith only such deviations therefrom as are required by local Law (the “LocalAsset Transfer Agreements”), and (iv) such other agreements as mayreasonably be required to effect the purchase and assignment of the PurchasedAssets and Assumed Liabilities (collectively, the agreements referred to inclauses (i)—(iv), together with the IPMA, the ancillary agreements entered intoby the Parties and/or their Affiliates pursuant to the terms of the IPMA, theTransition Services Agreement, the Symmetrical Supply Agreement the “AncillaryAgreements”) and shall be executed no later than at or as of the Closing bySeller and/or one or more of its Subsidiaries, as appropriate, and Purchaser orone of its Subsidiaries.

 

(b)                                 Such assignment, transfer or conveyancewill be effective as of such times as provided in each respective AncillaryAgreement or any other Transaction Document and will be subject to the termsand conditions of this Agreement, any applicable Ancillary Agreement or otherTransaction Document.

 

2.5                                         Approvals and Consents.

 

(a)                                  Notwithstanding anything to the contrarycontained in this Agreement, and subject to the provisions of this Section 2.5,to the extent that the sale, conveyance, transfer, assignment or delivery orattempted sale, conveyance, transfer, assignment or delivery to Purchaser ofany Purchased Asset would result in a violation of any applicable Law, or wouldrequire any Consent of any Governmental Authority or third party and suchConsent shall not have been obtained prior to the Closing, this Agreement shallnot constitute a sale, conveyance, transfer, assignment or delivery, or anattempted sale, conveyance, transfer, assignment or delivery thereof; provided,however, that, subject to the satisfaction or waiver of the conditionscontained in ARTICLE VII, the Closing shall occur notwithstanding the foregoingwithout any adjustment to the Purchase Price on account thereof.  Following the Closing, the Parties shall usecommercially reasonable efforts, and shall cooperate with each other, to obtainpromptly any such Consent, or any release, substitution or amendment, requiredto novate or assign all rights and obligations under the applicable PurchasedAsset or other Liabilities that constitute the Assumed Liabilities or to obtainin writing the unconditional release of all parties to such arrangements, sothat, in any case, Purchaser will be solely responsible for such PurchasedAssets and Assumed Liabilities from and after the Closing Date; provided,further, that neither Party nor any of its Subsidiaries shall berequired to pay any consideration therefor.

 

(b)                                 Once such Consent, release, substitutionor amendment is obtained, Seller shall, or shall cause its Subsidiaries to,sell, assign, and transfer to the Purchaser the relevant Purchased Asset towhich such Consent, release, substitution or amendment relates for noadditional consideration.  ApplicableTransfer Taxes in connection with such sale, assignment, transfer, conveyanceor license shall be paid in accordance with Section 6.11.

 

(c)                                  To the extent that any Purchased Assetand/or Assumed Liability cannot be transferred to the Purchaser following theClosing pursuant to this Section 2.5, the Purchaser****andSeller shall use commercially reasonable efforts to enter into sucharrangements (including subleasing, sublicensing or subcontracting) to provideto the Parties the economic (taking into account Tax costs and benefits) and,to the extent permitted under applicable Law, operational equivalent of thetransfer of such Purchased Asset and/or Assumed Liability to Purchaser as ofthe Closing and the performance by the Purchaser****ofits obligations with respect thereto. Purchaser shall, as agent orsubcontractor for Seller or its Affiliates, pay, perform and discharge fullythe Liabilities of Seller or its Affiliates thereunder from and after theClosing 

 

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Date. To the extentpermitted under applicable Law, Seller shall hold in trust for and pay to thePurchaser promptly upon receipt thereof, such Purchased Asset and all income,proceeds and other monies received by Seller to the extent related to suchPurchased Asset in connection with the arrangements under this Section 2.5.  Seller shall be permitted to set off againstsuch amounts all direct costs associated with the retention and maintenance ofsuch Purchased Assets.  Notwithstandingthe foregoing, Seller shall have no obligation whatsoever to retain any portionof the Business, other than any individual asset or Contract (but only until suchtime as the transfer thereof may be effected in accordance with thisAgreement), in order to obtain any such Consent referred to in this Section 2.5or elsewhere in this Agreement. Notwithstanding anything herein to the contrary, the provisions of this Section 2.5shall not apply to any Consent required under any Antitrust Regulations, whichConsents shall be governed by Section 6.3.

 

(d)                                 In the event that there are any Contractsfor the purchase of products or services from or by Seller or any of its Affiliateswhich were not included in the Purchased Assets or the Assumed Liabilities andwhich were not specifically excluded from the transfers under this Agreement,but which would have been transferred to Purchaser as part of this Agreementbut for the fact that such Contract was not discovered until after the Closingor inadvertently was not assigned (each, a “Later Discovered Contract”),to the extent permitted under the terms and conditions of such Later DiscoveredContract and under applicable laws, Purchaser and Seller agree to cooperate andtake such actions as may be necessary to cause such Later Discovered Contractor the applicable rights or obligations under such Later Discovered Contract tobe assigned to Purchaser and, upon such assignment, such Later DiscoveredContract shall be deemed to be an Assumed Contract hereunder.

 

2.6                                         Post-Closing Transfers.

 

(a)                                  If any Party discovers, within six (6) monthsafter the Closing Date, that any Purchased Asset exclusively used within theBusiness prior to the Closing was not transferred to Purchaser as part of theconsummation of the transactions contemplated by this Agreement, Seller shalland shall cause its Subsidiaries to promptly transfer, assign and convey, orshall cause such Purchased Asset to be transferred, assigned and conveyed, toPurchaser without any additional consideration therefor free and clear of allLiens.

 

(b)                                 If any Party discovers, within six (6) monthsafter the Closing Date, that Purchaser owns any Purchased Assets that areExcluded Assets, or that any Purchased Assets have been transferred by Sellerto Purchaser that are Excluded Assets, then the Parties agree that any suchExcluded Assets will be considered to have been held in trust by the Purchaserfor Seller and, at Seller’s option and written request, Purchaser shall andshall cause its Subsidiaries to promptly transfer, assign and convey, or shallcause any such Excluded Asset to be transferred, assigned and conveyed, atSeller’s sole cost and expense, to Seller or any of its Affiliates or otherdesignees designated by Seller without any additional consideration thereforfree and clear of all Liens. Notwithstanding the foregoing, Seller may opt notto receive such Purchased Assets that are Excluded Assets.

 

2.7                                         Purchaser Acknowledgement. Purchaser hereby understands, acknowledges and agrees that (i) Sellerand its Subsidiaries as of the date of this Agreement do not own any right,title or interest in the Purchased Assets or the Business and do not, as of thedate of this Agreement, have the right to sell, assign, transfer or convey thePurchased Assets or the Business to Purchaser, (ii) the completion of thetransactions contemplated by this Agreement and the other Transaction Documentsis subject to the prior consummation of the Varian Merger. In the event thatthe Varian Merger is not consummated, Purchaser understands, acknowledges andagrees that neither Seller, Varian nor any of their respective Subsidiariesshall have any Liability whatsoever to Purchaser or any of its Affiliates inconnection with the negotiation, execution and delivery and/or termination ofthis Agreement and the other Transaction 

 

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Documents (including withrespect to any costs or expenses incurred by Purchaser or any of its Affiliatesin connection therewith).

 

ARTICLE III

PURCHASE PRICE

 

3.1                                         Purchase Price. The total consideration for the Purchased Assets shall consist of (a) thesum of $37,500,000 (thirty-seven million five hundred thousand U.S. dollars)payable to Seller in cash (the “Purchase Price”), and (b) theassumption by Purchaser of the Assumed Liabilities.

 

3.2                                         Payment of Purchase Price. On the Closing Date, Purchaser shall pay the Purchase Price minus theEscrow Cash to Seller (for its own account and as agent for any Other Sellerunless otherwise provided in any Local Asset Transfer Agreement).  Such amount shall be payable in United Statesdollars in immediately available federal funds and delivered by Purchaser tosuch bank account or accounts as shall be designated in writing by Seller nolater than the second Business Day prior to the Closing.

 

3.3                                         Deposit of Escrow Cash. On the Closing Date, Purchaser shall cause to be deposited with J.P.Morgan Chase N.A., as the escrow agent (the “Escrow Agent”), the EscrowCash.  The Escrow Cash shall be withheldfrom the Purchaser Price payable pursuant to Section 3.1 to theSeller as security for the indemnification obligations of the Seller pursuantto Article IX, and shall be held in and distributed in accordancewith the provisions of the Escrow Agreement, in substantially the form attachedhereto as Exhibit E (the “Escrow Agreement”), dated as ofthe Closing Date, and executed by Purchaser, Seller and the Escrow Agent.

 

3.4                                         Allocation of Purchase Price.

 

(a)                                  Within ninety (90) days following theClosing Date, the Parties shall in good faith mutually agree to an allocationof the Purchase Price (and all other capitalizable costs) among the PurchasedAssets in accordance with Section 1060 of the Code and the Treasuryregulations promulgated thereunder and any similar provision of state, local orforeign law, as applicable (the “Allocation Schedule”) for all purposes(including financial accounting and Tax purposes (except as otherwise requiredby generally accepted accounting principles). Purchaser shall have the right to approve such allocation (whichapproval shall not be unreasonably withheld).

 

(b)                                 Not later thanten (10) days prior to the filing of their respective IRS Forms 8594relating to the transactions contemplated by this Agreement, each Party shalldeliver to the other Party a copy of its IRS Form 8594.

 

(c)                                  Purchaser and Seller shall be bound bysuch Allocation Schedule and shall file, according to Section 1060 of theCode, all returns (including, without limitation, filing Form 8594) andreports with respect to the transactions contemplated by this Agreement(including, without limitation, all federal, state and local Tax returns) onthe basis of the allocation reflected in the Allocation Schedule.  In addition, Purchaser and Seller shall actin accordance with the Allocation Schedule in the course of any Tax audit, Taxreview or Tax litigation relating thereto, and take no position and cause theirAffiliates not to take any position inconsistent with the Allocation Schedulefor income Tax purposes, including United States federal and state income Taxand foreign income Tax, unless otherwise required pursuant to a “determination”within the meaning of Section 1313(a) of the Code.

 

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ARTICLE IV

REPRESENTATIONSAND WARRANTIES OF SELLER

 

Except as set forthspecifically on any of the three disclosure letters delivered bySeller on the date hereof and attached hereto (each, a “Disclosure Letter“), Seller represents and warrants to Purchaser that thestatements as set forth in this ARTICLE IV will be accurate as of theClosing.  For the purposes of this ARTICLE IV, all references to theSubsidiaries of Seller shall be deemed to include Varian and its Subsidiaries.

 

4.1                                         Corporate Existence. Each of Seller and each of its Subsidiaries party to the otherTransaction Documents (such Subsidiaries, collectively, the “Other Sellers”)is duly organized, validly existing and in good standing under the laws of itsjurisdiction of organization.  Each ofSeller and each Other Seller has the requisite corporate, partnership orsimilar power and authority to execute and deliver this Agreement and each ofthe other Transaction Documents to which it is a party and, subject to theconsummation of the Varian Merger, to consummate the transactions contemplatedhereby and thereby and to carry on the Business. Seller and each Other Seller is duly qualified to do business asa foreign corporation and is in good standing in each jurisdiction where suchqualification is necessary, except for those jurisdictions where failure to beso qualified would not reasonably be expected to have, individually or in theaggregate, a Seller Material Adverse Effect.

 

4.2                                         Corporate Authority.

 

(a)                                  Subject to the consummation of the VarianMerger, this Agreement, the Ancillary Agreements and the other agreements,instruments and documents to be executed and delivered in connection herewith(collectively, the “Transaction Documents”), to which Seller or anyOther Seller is (or becomes) a party and the consummation of the transactionscontemplated hereby and thereby involving such Persons have been dulyauthorized by Seller and will be duly authorized by each applicable OtherSeller by all requisite corporate, partnership or other action prior to Closingand no other proceedings on the part of Seller or its stockholders are (and noother proceedings on the part of any Other Seller or any of its equity holderswill be) necessary for Seller or any Other Seller to authorize the execution ordelivery of this Agreement or any of the other Transaction Documents or toperform any of their obligations hereunder or thereunder. Seller has, and eachof the Other Sellers will have at or prior to the Closing, full corporate orother organizational (as applicable) power and authority to execute and deliverthe Transaction Documents to which it is a party and, subject to theconsummation of the Varian Merger, to perform its obligations thereunder.  This Agreement has been duly executed anddelivered by Seller, and the other Transaction Documents will be duly executedand delivered by Seller and any Other Seller party thereto. This Agreementconstitutes, and the other Transaction Documents when so executed and deliveredwill constitute, a valid and legally binding obligation of Seller and/or anyOther Seller, enforceable against it or them, as the case may be, in accordancewith its terms, except as enforceability may be affected by bankruptcy,insolvency, fraudulent conveyance, reorganization, moratorium and other similarLaws relating to or affecting creditors’ rights generally, and generalequitable principles (whether considered in a proceeding in equity or at law).

 

(b)                                 Except (i) for required filingsunder any applicable Laws or regulations relating to antitrust or competition(including but not limited to the approval by the US and European Unionantitrust authorities of the transaction contemplated hereby) (collectively, “AntitrustRegulations”), (ii) if determined to be necessary by Seller, the filingof this Agreement with the Securities and Exchange Commission (the “SEC”),and subject to the consummation of the Varian Merger, the execution anddelivery of this Agreement and the other Transaction Documents by Seller and/oreach of the Other Sellers, the performance by Seller and each Other Seller ofits respective obligations hereunder and 

 

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thereunder and theconsummation by Seller and each of the Other Sellers of the transactionscontemplated hereby and thereby do not and will not (A) violate orconflict with any provision of the respective certificate of incorporation orby-laws or similar organizational documents of Seller or any Other Seller, (B) resultin any violation or breach of, or constitute any material default (with orwithout notice or lapse of time, or both) under, or give rise to a right oftermination, cancellation or acceleration of any obligation or a loss of abenefit under, require that any Consent be obtained or result in the creationof any Lien under, any Assumed Contracts, to which Seller or any Subsidiary ofSeller is a party or to which any of the Purchased Assets are subject, or (C) violate, conflict with or result in any breach under any provision of any Lawapplicable to Seller or any Other Seller or the Purchased Assets, except in thecases of subclauses (B) and (C), where such violation, breach,conflict, default, right of termination or cancellation, acceleration, loss ofbenefit, failure to obtain Consent or Lien would not reasonably be expected tobe material to the Business or the Purchased Assets.

 

4.3                                         Governmental Approvals and Consents. Except for any requirements under any Antitrust Regulations, no materialConsent, order, or license from, material notice to or material registration,declaration or filing with, any United States, foreign, federal, state,provincial, municipal or local government, government agency, court ofcompetent jurisdiction, administrative agency or commission or othergovernmental or regulatory authority or instrumentality (“GovernmentalAuthority”) is required on the part of Seller or any Other Seller inconnection with the execution, delivery or performance of this Agreement or anyof the other Transaction Documents or the consummation of the transactionscontemplated hereby and thereby.

 

4.4                                         Purchased Assets.

 

(a)                                  Seller or one of its Subsidiaries has, orat the Closing will have, and Purchaser will at the Closing acquire, good andvalid title to the Purchased Assets (or in the case of leased Purchased Assets,valid leasehold interests in such leased Purchased Assets), free and clear ofall Liens except Permitted Liens and Liens arising out of any actions ofPurchaser and its Subsidiaries. The Tangible Assets are in good working conditionand repair, ordinary wear and tear excepted, and are suitable for the purposesfor which they are presently used. Notwithstanding the foregoing, the provisions of this Section 4.4(a) shallnot apply to Intellectual Property Rights matters (which are exclusivelyaddressed in Section 4.7).

 

(b)                                 Immediately following the Closing, thePurchased Assets, together with the rights granted to Purchaser, and theservices to be provided by Seller to Purchaser, under the Ancillary Agreements,shall be sufficient in all material respects to permit Purchaser to conduct theBusiness consistent with the manner in which the Business was conducted bySeller and its Subsidiaries as of immediately prior to the Closing.

 

4.5                                         Contracts

 

(a)                                  Except as set forth on Schedule 4.5(a) ofthe Disclosure Letter, no Assumed Contract in effect as of the date of thisAgreement constitutes any of the following (any Contract specified in Schedule 4.5(a) ofthe Disclosure Letter is referred to as an “Assumed Material Contract”):

 

(i)                                     any Contract to which Seller or any ofits Subsidiaries is a party limiting in any material respect the right ofSeller or such Subsidiary to engage in any line of business or to compete withany Person, in each case, which would apply to the activities of Purchaserafter the Closing with respect to the Business;

 

(ii)                                  a lease, sublease or similar Contractwith any Person under which (A) Seller or any of its Subsidiaries islessee of, or holds or uses, any machinery, equipment, vehicle or othertangible 

 

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personal property ownedby any Person as part of the conduct of the Business or (B) Seller or anyof its Subsidiaries is a lessor or sublessor of, or makes available for use byany Person, any machinery, equipment, vehicle or other tangible personalproperty owned or leased by Seller or any of its Subsidiaries as part of theconduct of the Business, in any such case, that has involved an aggregateLiability or receivable, as the case may be, in excess of $250,000 in the yearended December 31, 2009;

 

(iii)          any Contract for the purchase of SellerProducts by any customer of the Business involving the receipt in thetwelve-month period ended December 31, 2009 of an amount in excess of$250,000 by Seller or any of its Subsidiaries;

 

(iv)                              a continuing Contract for the purchase bySeller, Varian or their respective Subsidiaries of materials, supplies,equipment or services for use in the Business (other than purchase orders forinventory (i.e., raw materials, work in process and finished goods) in theordinary course of business), that has involved an aggregate Liability to anyPerson in excess of $250,000 in the year ended December 31, 2009;

 

(v)                                 a Contract granting a Lien upon anyPurchased Asset other than Permitted Liens;

 

(vi)                              a Contract related to the Businessproviding for the services of any dealer, distributor, sales representative,franchise or similar non-employee representative that involved the payment orreceipt in the twelve-month period ended December 31, 2009 of an amount inexcess of $250,000 by Seller  or any ofits Subsidiaries.

 

(b)                                 All Assumed Contracts are valid, bindingand in full force and effect with respect to Seller or its Subsidiary that isparty thereto subject to and except as limited by the effect, if any, ofapplicable bankruptcy and other similar laws and equitable principles affectingthe rights of creditors generally and rules of law and equitableprinciples governing specific performance, injunctive relief and otherequitable remedies. None of the Assumed Contracts have been amended or modifiedin any material respect except as set forth therein. Neither Seller nor any ofits Subsidiaries is in material breach or default in the performance of any oftheir respective obligations under any Assumed Contract and, to the knowledgeof Seller, no other party to such Assumed Contract is in material breach ordefault thereunder. No event exists which, with the giving of notice or lapseof time or both, would constitute a material breach, default or event ofdefault on the part of Seller or any Subsidiary of Seller under any  Assumed Contract that is continuingunremedied.

 

(c)                                  Notwithstanding the foregoing, theprovisions of this Section 4.5 shall not apply to Intellectual PropertyRights matters (which are exclusively addressed in Section 4.7).

 

4.6                                         Litigation.  NeitherSeller, any Other Seller nor any other Subsidiary of Seller is subject to anyorder, judgment, stipulation, injunction, decree of, or agreement with, anyGovernmental Authority, which would reasonably be expected to prevent ormaterially interfere with or delay the consummation of any of the transactionscontemplated by the Transaction Documents or would reasonably be expected tohave a Seller Material Adverse Effect. No Proceeding is pending or, to the knowledge of Seller, threatenedagainst Seller, any Other Seller or any Subsidiary which would reasonably beexpected to prevent or materially interfere with or delay the consummation ofthe transactions contemplated hereby or by any of the other TransactionDocuments or would reasonably be expected to have a Seller Material AdverseEffect.

 

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4.7                                         Intellectual Property Rights.

 

(a)                                  Seller owns the Transferred IntellectualProperty Rights free and clear of any Liens (other than Permitted Liens andexisting licenses).

 

(b)                                 No Proceedings have been instituted orare pending against Seller or to the knowledge of Seller are threatened, whichchallenge the rights of Seller with respect to use or ownership of the Businessor the Transferred Intellectual Property Rights.  To Seller’s knowledge, the conduct of theBusiness does not infringe upon any Intellectual Property Rights of any thirdparty.

 

(c)                                  As of the date hereof, neither Seller norany of its Subsidiaries have received any written notice nor is there anypending Proceeding, to which Seller or any of its Subsidiaries is a party,alleging (i) that the use of the Transferred Intellectual Property Rightsby Seller or any of its Subsidiaries violates any valid Intellectual PropertyRight of any third party, (ii) invalidity of the Transferred IntellectualProperty Rights, or (iii) ownership of the Transferred IntellectualProperty Rights by a third party.

 

(d)                                 Seller represents and warrants that:  (i) Schedule 2.1(vii) of theDisclosure Letter lists the Patents, Trademarks, Copyrights, and Mask Worksowned by Seller that are included in and are part of the TransferredIntellectual Property Rights; (ii) Schedule 2.1(ix) of theDisclosure Letter lists the agreements under which material IntellectualProperty is licensed to Seller from third parties that is used in the Businessand which will, subject to the provisions of Section 2.5 hereof, beassigned by Seller to Purchaser in connection with the transactionscontemplated by this Agreement**;** and (iii) Exhibit         of the IPMA lists the material Intellectual Property Rights of Seller that arenot used exclusively in the Business to which Seller will grant Purchasercertain license rights (as specified in the IPMA).  To Seller’s knowledge, Seller owns orlicenses from third parties the Intellectual Property Rights necessary toconduct the Business (as collectively specified in subsections 4.7(d)(i) through4.7(d)(iv) above in this Section 4.7(d)).

 

(e)                                  Schedule 4.7(e) to the Disclosure Letter includes atrue and complete list of all licenses, sublicenses and other Contractspursuant to which any Person is authorized to use any Transferred IntellectualProperty Rights (other than Contracts with customers or distributors of theBusiness entered into in the ordinary course of business).

 

(f)                                    To Seller’s knowledge, Seller’s use ofthe Intellectual Property Rights licensed from third parties that areexclusively****used in the Business does notviolate any agreement between Seller and the third party.

 

(g)                                 To Seller’s knowledge, there is nounauthorized use, infringement or misappropriation by any third party of any ofthe Transferred Intellectual Property Rights.

 

(h)                                 To Seller’s knowledge, the computer softwareand/or firmware included as part of the Purchased Assets or the TransferredIntellectual Property Rights does not contain any disabling mechanism orprotection feature designed to prevent its use. Seller has exercised commercially reasonable efforts to protect suchcomputer software and/or firmware from harmful code, including withoutlimitation self-replicating and self-propagating programming instructionscommonly called “viruses” or “worms” (which has the ability to damage,interfere with or otherwise adversely affect computer programs, data files orhardware without the consent or intent of the computer user).

 

(i)                                     Except for off-the-shelf third-partysoftware, there is no encryption function or code embedded in the softwareand/or firmware that is included as part of the Transferred IntellectualProperty Rights.

 

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(j)                                     Seller and its Subsidiaries have takencommercially reasonable efforts to secure valid, written assignments from allemployees, consultants and independent contractors who have been involved withthe creation or development of any material Transferred Intellectual PropertyRights at the times during which they were so involved (either as employees orindependent contractors of Seller or employees of third parties who assignedownership of their rights relating thereto to Seller).

 

(k)                                  Seller has used commercially reasonableefforts to protect the proprietary and trade secret status of trade secretsincluded in the Transferred Intellectual Property Rights, as appropriate, andhas not disclosed or otherwise caused the loss of the proprietary or tradesecret status thereof by release thereof to the public domain.

 

4.8                                         Tax Matters.

 

(a)                                  To the extent that failure to do so wouldmaterially and adversely affect, or result in a material Lien, on any of thePurchased Assets or otherwise result in Purchaser having any liability forpayment of any amount, Seller has withheld with respect to the BusinessEmployees and paid to the appropriate Governmental Authority all federal,state, local and foreign income taxes, FICA, FUTA and any otheremployment-related Taxes required to be withheld or paid. Neither Seller norany of its Subsidiaries has any material liability for unpaid Taxes in respectof the Purchased Assets other than Taxes that are not yet due and payable.

 

(b)                                 None of the Purchased Assets is “tax-exemptuse property” within the meaning of Section 168(h) of the Code.

 

(c)                                  There are no outstanding Tax Liensagainst any of the Purchased Assets (other than Permitted Liens) and no claimsare being asserted by any Governmental Authority with respect to any Taxesrelated to the Business or any of the Purchased Assets.

 

(d)                                 None of the Purchased Assets is propertythat is required to be treated for Tax purposes as being owned by any otherPerson (other than those Purchased Assets that are leased).

 

4.9                                         Compliance with Laws. The Business is being and has been conducted by Seller and itsSubsidiaries in material compliance with the Laws applicable thereto. NeitherSeller nor any of its Subsidiaries has received any written notices ofviolation with respect to any Laws applicable to the conduct of the Business orthe ownership or operation of the Purchased Assets other than as would not bematerial to the Business or the ownership or operation of the Purchased Assets.Seller and its Subsidiaries each have all material governmental permits,licenses, registrations, certificates, franchises, variances, exemptions,orders and other governmental authorizations, consents and approvals(collectively, “Permits”) necessary to conduct the Business as presentlyconducted.  Neither Seller nor any of itsSubsidiaries has received any written notice from any Governmental Authorityregarding (i) any actual or possible material violation of any Permit, orany failure to comply in any material respect with any term or requirement ofany Permit, in each case related to the Business or (ii) any actual orpossible revocation, withdrawal, suspension, cancellation, termination ormodification of any material Permit related to the Business.

 

4.10                                   Environmental Matters. Except as disclosed in Schedule 4.9 of the DisclosureLetter: (a) Seller, each Other Seller and each of the Subsidiaries ofSeller in respect of the Business, the Purchased Assets and the HazardousMaterials Activities relating to the Business Facilities are and have been inmaterial compliance with all Environmental Laws, including the possession of,and the compliance with, all material Permits required under EnvironmentalLaws; (b) there has not been any Release of Hazardous Materials at or fromthe Business Facilities in violation of Environmental Laws or 

 

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in a manner that wouldreasonably be expected to give rise to a material Liability under anyEnvironmental Laws; and (c) neither Seller nor any Subsidiary of Sellerhas received any Environmental Claim relating to the Business, and to theknowledge of Seller, there are no Environmental Claims threatened against theBusiness.

 

4.11                                   Financial Information. Attached as Schedule 4.11 of the Disclosure Letter are proforma unaudited statements of income for the Business for the fiscal yearsended September 30, 2008 and 2009 (collectively, the “Business Financial Statements”).  The Business Financial Statements havebeen prepared in good faith on the basis described in Schedule 4.11 ofthe Disclosure Letter.

 

4.12                                   Employees

 

(a)                                  Schedule 6.6 to the Disclosure Letter (consisting ofthe Final List delivered by Seller prior to the Closing) will be a complete andaccurate list of all the Business Employees as of the date of delivery thereofto Purchaser.

 

(b)                                 Neither Seller nor any of itsSubsidiaries has received any notice that any executive or key BusinessEmployee, or any group of Business Employees, has any plans to terminate his,her or their employment with Seller or any such Subsidiary.

 

(c)                                  Seller and its Subsidiaries are incompliance in all material respects with all applicable Laws regardingemployment practices, terms and conditions of employment, equal opportunity andwages and hours, including without limitation WARN, ERISA, COBRA and the FLSA,with respect to the conduct of the Business by Seller and its Subsidiaries.

 

(d)                                 Neither Seller nor any of its Subsidiarieshas any labor relations problems or disputes related to the Business or theBusiness Employees. With respect to the Business, there is not presentlypending or existing, and to the Knowledge of Seller, there is not threatened,any strike, slowdown, picketing, or work stoppage. Except as described in Schedule4.12 of the Disclosure Letter, neither Seller nor any of its Subsidiariesis a party to or bound by any collective bargaining agreement or union contractrelated to the Business or the Business Employees.  No union organization effort is threatened,initiated or is in progress with respect to the Business or the BusinessEmployees.

 

4.13                                   Inventory.  To theKnowledge of Seller, the Inventory Assets consist of raw materials andsupplies, manufactured and purchased parts, goods in process and finishedgoods, all of which is merchantable, fit for the purpose for which it wasprocured or manufactured, and in a condition and quantity usable, and, withrespect to finished goods only, saleable, in the ordinary course ofbusiness.  To Knowledge of Seller, noneof the Inventory is obsolete, damaged or defective in any material respect.Notwithstanding the foregoing, for the purpose of the representations in this Section 4.13,Inventory Assets shall solely mean inventory related to the Seller Productsbeing sold by Seller as of the Closing and shall not include, and therepresentations contained herein shall not be applicable to, any inventoryrelated to Discontinued Products.

 

4.14                                   Fair Consideration; No FraudulentConveyance. Thetransfer of the Purchased Assets to Purchaser as contemplated by this Agreementand the Ancillary Agreements is made in exchange for fair and equivalentconsideration, and neither Seller nor any Other Seller is now insolvent nor willbe rendered insolvent by the sale, transfer and assignment of the PurchasedAssets as contemplated by this Agreement and the Ancillary Agreements.  Neither Seller nor any Other Seller isentering into this Agreement or the transactions contemplated hereby with theintent to defraud, delay or hinder its creditors and the consummation of thetransactions contemplated by this Agreement, and the Ancillary Agreements willnot have any such effect.  Thetransactions contemplated by this Agreement or any Ancillary 

 

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Agreement will not giverise to any right of any creditor of Seller or any Subsidiary of Seller toassert any claim whatsoever against Purchaser or any of the Purchased Assets inthe hands of Purchaser or any of their respective successors and assignsfollowing the Closing.

 

4.15                                   Finders; Brokers. Seller has not employed any finder or broker in connection with thetransactions contemplated by this Agreement who would have a valid claim for afee or commission from Seller in connection with the negotiation, execution ordelivery of this Agreement or any of the other Transaction Documents or theconsummation of any of the transactions contemplated hereby or thereby.

 

ARTICLE V

REPRESENTATIONS OFPURCHASER

 

Purchaser represents andwarrants to Seller as follows:

 

5.1                                         Corporate Existence. Purchaser is duly organized, validly existing and in good standing underthe laws of its jurisdiction of organization, and has the requisite power andauthority to execute and deliver this Agreement and the other TransactionDocuments to which it is a party and to perform its obligations hereunder andthereunder.  Purchaser has the requisitecorporate power and authority to own, lease and operate the Purchased Assets andto assume the Assumed Liabilities, and to carry on the Business insubstantially the same manner as the same is now being conducted by Seller andits Subsidiaries.

 

5.2                                         Corporate Authority.

 

(a)                                  This Agreement and the other TransactionDocuments to which Purchaser is a party and the consummation of thetransactions contemplated hereby and thereby involving Purchaser have been dulyauthorized by Purchaser by all requisite corporate, partnership or otheraction.  Purchaser has full power andauthority to execute and deliver the Transaction Documents to which it is aparty and to perform its obligations thereunder.  This Agreement has been duly executed anddelivered by Purchaser, and the other Transaction Documents will be dulyexecuted and delivered by Purchaser, and this Agreement constitutes, and theother Transaction Documents when so executed and delivered will constitute,valid and legally binding obligations of Purchaser, enforceable against it inaccordance with its terms except as enforceability may be affected bybankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium andother similar Laws relating to or affecting creditors’ rights generally,general equitable principles (whether considered in a proceeding in equity orat Law) and the implied covenant of good faith and fair dealing.

 

(b)                                 The execution and delivery of thisAgreement and the other Transaction Documents by Purchaser, the performance byPurchaser of its obligations hereunder and thereunder and the consummation byPurchaser of the transactions contemplated hereby and thereby do not and willnot (A) violate or conflict with any provision of the respectivecertificate of incorporation or by-laws or similar organizational documents ofPurchaser, (B) result in any violation or breach or constitute any default(with or without notice or lapse of time, or both) under, or give rise to aright of termination, cancellation or acceleration of any obligation or to theloss of a material benefit under, or result in the creation of any Lien underany contract, indenture, mortgage, lease, note or other agreement or instrumentto which Purchaser is subject or is a party, or (C) violate, conflict withor result in any breach under any provision of any Law applicable to Purchaseror any of its properties or assets, except, in the case of clauses (B) and(C), to the extent that any such default, violation, conflict, breach or losswould not reasonably be expected to prevent or materially interfere with ordelay the consummation of any of the 

 

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transactions contemplatedby the Transaction Documents or would not reasonably be expected to have aPurchaser Material Adverse Effect.

 

5.3                                         Governmental Approvals and Consents. Except for any requirements under any Antitrust Regulations, no Consent,approval, order or authorization of, license or permit from, notice to orregistration, declaration or filing with, any Governmental Authority, isrequired on the part of Purchaser or any of its Affiliates in connection withthe execution, delivery or performance of this Agreement or any of the otherTransaction Documents or the consummation of the transactions contemplatedhereby and thereby except for such consents, approvals, orders orauthorizations of, licenses or permits, filings or notices which have beenobtained and remain in full force and effect and those with respect to whichthe failure to have obtained or to remain in full force and effect would nothave a Purchaser Material Adverse Effect. To the knowledge of Purchaser, there are no filings of the naturecontemplated by Sections 4.2(a) and 4.2(b) requiredto be made by Purchaser or any of its Affiliates in connection with thetransactions contemplated by this Agreement or any other Transaction Documenton account of the business or operations of Purchaser, other than the filingsexpressly contemplated by Sections 4.2(a) and 4.2(b).

 

5.4                                         Litigation.  NeitherPurchaser nor any of its Affiliates is subject to any order, judgment,stipulation, injunction, decree or agreement with any Governmental Authority,which would reasonably be expected to prevent or materially interfere with ordelay the consummation of any of the transactions contemplated by theTransaction Documents or would reasonably be expected to have a PurchaserMaterial Adverse Effect.  No Proceedingis pending or, to the knowledge of Purchaser, threatened against Purchaser orany of its Affiliates which would reasonably be expected to prevent or materiallyinterfere with or delay the consummation of the transactions contemplatedhereby or by any of the other Transaction Documents.

 

5.5                                         Financial Capacity.  Purchasercurrently has, and at Closing will have, the financial capacity and resourcesnecessary and sufficient to consummate the transactions contemplated hereby,including any related fees and expenses. The funds necessary to close the transactions contemplated hereby andpay any related fees and expenses will be available to Purchaser on a timelybasis for the transactions contemplated hereby without the need for Purchaserto obtain any external financing.

 

5.6                                         Finders; Brokers. None of Purchaser nor any of its Affiliates has employed any finder orbroker in connection with the Purchase who would have a valid claim for a feeor commission from Seller in connection with the negotiation, execution ordelivery of this Agreement or any of the other Transaction Documents or theconsummation of any of the transactions contemplated hereby or thereby.

 

ARTICLE VI

AGREEMENTS OFPURCHASER AND SELLER

 

6.1                                         Operation of the Business. Except as otherwise provided in this Agreement or as disclosed in Section 6.1of the Disclosure Letter, from the date hereof until the Closing, without theprior written approval of Purchaser (which approval shall not be unreasonablywithheld) Seller shall, and it shall use its commercially reasonable efforts tocause Varian and the Subsidiaries of Varian in respect of the Business to,continue to operate and conduct the Business in the ordinary course of businessconsistent with past practice.  Except asotherwise contemplated by this Agreement or as disclosed in Section 6.1of the Disclosure Letter, without limiting the generality of the foregoing,Seller shall not and shall use its commercially reasonable efforts to causeVarian and the Subsidiaries of Varian not to, without the prior writtenapproval of Purchaser (which approval shall not be unreasonably withheld), takeany of the following actions with respect to the Purchased Assets or theBusiness:

 

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(a)                                  transfer, sell, lease, license orotherwise convey or dispose of, or subject to any Lien (other than PermittedLiens), any of the Purchased Assets, other than (i) sales or non-exclusivelicenses of inventory in the ordinary course of business, (ii) othertransfers, leases, licenses and dispositions made in the ordinary course ofbusiness;

 

(b)                                 grant any material increase in thecompensation or benefits arrangements of a Transferred Employee or under anySeller Plan, except for increases in the compensation or benefits of suchemployees:  (A) in the ordinarycourse of business (excluding severance or bonuses, in either case payable bySeller upon consummation of the transactions contemplated by this Agreement,for Business Employees covered by parts (i) and (iii), but not part (ii) ofsuch definition), (B) as a result of collective bargaining or otheragreements with such employees as in effect on the date hereof, or (C) asrequired by applicable Law from time to time in effect or by any employeebenefit plan, program or arrangement sponsored by Varian or one of itsSubsidiaries as in effect on the date hereof;

 

(c)                                  voluntarily terminate (other than byexpiration) or amend or modify (other than by automatic extension or renewal ifdeemed an amendment or modification of any such contract) in any respect thematerial terms of any Assumed Material Contract other than in the ordinarycourse of business consistent with past practice;

 

(d)                                 commence or settle any material Proceedingsolely relating to the Business or the Purchased Assets;

 

(e)                                  agree or commit to do any of theforegoing.

 

Not fewer than five (5) daysprior to the Closing, Seller shall deliver to Purchaser a supplement to Schedules2.1(vi) and 4.5(a) of the Disclosure Letter, which shall identifythose Contracts entered into by Seller, Varian or any of their respectiveSubsidiaries after the date of this Agreement not in violation of the termshereof which would have constituted “Assumed Contracts” and “Assumed MaterialContracts” respectively if such Contracts had been in effect as of the datehereof, and such Contracts identified on such supplement to Schedule 2.1(vi) and4.5(a) of the Disclosure Letter shall be deemed “Assumed Contracts”and “Assumed Material Contracts” respectively for all purposes hereof so longas such Contracts were entered into in accordance with the terms hereof.

 

6.2                                         Access to Information; Confidentiality.

 

(a)                                  Until the Closing, Seller shall, andshall use its commercially reasonable efforts to cause Varian and itsSubsidiaries to, permit Purchaser and its authorized agents or representativesto have reasonable access to the properties, books, records, Contracts and suchfinancial (including working papers) and operating data of the Business and theBusiness Employees as Purchaser may reasonably request, during business hoursto review information and documentation and ask questions relative to theproperties, books, contracts, commitments and other records of the Business andto conduct any other reasonable investigations; provided, that suchinvestigation shall only be upon reasonable notice and shall not unreasonablydisrupt the personnel and operations of Varian and its Subsidiaries, shallcomply with the reasonable security and insurance requirements of Varian andits Subsidiaries and shall be at Purchaser’s sole risk and expense.  All requests for access to the offices,properties, books and records of Varian and its Subsidiaries shall be made tosuch representatives of Seller as Seller shall designate, who shall be solelyresponsible for coordinating all such requests and all access permittedhereunder.  It is further agreed thatneither Purchaser nor any of its Affiliates, agents or representatives shallcontact Varian, any of the employees, customers (including dealers anddistributors), suppliers, joint venture partners or Subsidiaries or Affiliatesof Varian or Seller in connection with the transactions contemplated hereby,whether in person or by telephone, electronic or other mail or other means ofcommunication, 

 

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without the specificprior authorization of such representatives of Seller.  Notwithstanding the foregoing, neither Sellernor Varian nor any of the Subsidiaries of Varian shall be required to provideaccess to or disclose information where such access or disclosure would waivethe attorney-client privilege of Seller, Varian or such Subsidiaries orcontravene any Law or binding agreement entered into prior to the date of thisAgreement.

 

(b)                                 The Parties expressly acknowledge andagree that this Agreement and the other Transaction Documents and theirrespective terms and all information, whether written or oral, furnished byeither Party to the other Party or any Affiliate of such other Party, or byVarian or any of its Subsidiaries to Purchaser, in connection with thenegotiation of this Agreement or the other Transaction Documents or pursuant toSection 6.5 (“Confidential Information”) shall be treated as “confidentialinformation” under that certain Confidential Disclosure Agreement dated January 6,2010 between the Parties.

 

6.3                                         Necessary Efforts; No Inconsistent Action.

 

(a)                                  Subject to Section 6.3(b) andthe other terms and conditions of this Agreement, Seller and Purchaser agree,and Purchaser and Seller agree to cause their respective Subsidiaries, to usetheir respective commercially reasonable efforts to take, or cause to be taken,all actions and to do, or cause to be done, all things necessary, proper oradvisable under applicable Law to consummate and make effective thetransactions contemplated by the Transaction Documents and to use itsreasonable commercial efforts to cause the conditions to each Party’sobligation to close the transactions contemplated hereby as set forth inARTICLE VII to be satisfied, including all actions necessary to obtain (i) alllicenses, certificates, permits, approvals, clearances, expirations, consents,waivers or terminations of applicable waiting periods, authorizations,qualifications and orders (each a “Consent”) of any GovernmentalAuthority required for the satisfaction of the conditions set forth in Section 7.1(b),and (ii) all other Consents (it being understood that the failure toobtain any such Consents contemplated by this clause (ii) shall not, byitself, cause the condition set forth in Section 7.3(b) to be deemednot to be satisfied and it being further understood that neither Party nor anyof their respective Subsidiaries shall be required to expend any money otherthan for filing fees or expenses or *de minimis*costs or expenses or agree to any restrictions in order to obtain any Consents)necessary in connection with the consummation of the transactions contemplatedby the Transaction Documents; provided, however, that, except asprovided in Section 2.5, in no event shall Seller or any of itsSubsidiaries be required or expected to retain any of the Purchased Assets(including assets that would be Purchased Assets but for the inability toobtain a Consent of a Governmental Authority). The Parties shall cooperatefully with each other to the extent necessary in connection with the foregoing.

 

(b)                                 In connection with the efforts referencedin Section 6.3(a), Purchaser and Seller shall promptly make all filingswhich may be required for the satisfaction of the condition set forth in Section 7.1(b) byeach of them in connection with the consummation of the transactionscontemplated hereby.  In addition,Purchaser and Seller agree, and Seller shall cause each of its Subsidiaries, tocooperate and to use their reasonable best efforts and take all actionsnecessary to obtain any Consents from Governmental Authorities required for theClosing contemplated by Section 6.3(a)(i) above and to respond aspromptly as practicable to any requests for information from any GovernmentalAuthority; provided, however, that in no event shall Seller orany of its Subsidiaries be required or expected to retain any of the PurchasedAssets (including assets that would be Purchased Assets but for the inabilityto obtain a Consent of a Governmental Authority) in order to comply  with its obligations in respect of theforegoing.  Each Party shall furnish tothe other such necessary information and assistance as the other Party mayreasonably request in connection with the preparation of any necessary filingsor submissions by it to any Governmental Authority.

 

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(c)                                  Each of Purchaser and Seller shall notifyand keep the other advised as to (i) any material communication from anyGovernmental Authority regarding any of the transactions contemplated hereby, (ii) anylitigation or administrative proceeding pending and known to such Party, or toits knowledge threatened, which challenges, or would challenge, thetransactions contemplated hereby and (iii) any event or circumstancewhich, to its knowledge, would constitute a breach of its respectiverepresentations and warranties in this Agreement; provided, however,that the failure of Seller or Purchaser to comply with this Section 6.3(c) shallnot subject Seller or Purchaser to any Liability hereunder in respect of anyclaim asserted after the relevant expiration date for the relevantrepresentation or warranty; and providedfurther, that Purchasermay not separately recover pursuant to ARTICLE IX or otherwise for both abreach of this Section 6.3(c) and any related breach of the relevantrepresentation or warranty.  Subject tothe provisions of ARTICLE X hereof, Seller and Purchaser shall not take anyaction inconsistent with their obligations under this Agreement or, withoutprejudice to Seller or Purchaser’s rights under this Agreement, which wouldmaterially hinder or delay the consummation of the transactions contemplated bythis Agreement.

 

6.4                                         Public Disclosures. Unless otherwise required by Law or the rules and regulations ofany stock exchange or quotation services on which such Party’s stock is tradedor quoted, prior to the Closing Date, no news release or other publicannouncement pertaining to the transactions contemplated by this Agreement willbe made by or on behalf of any Party or its Affiliates without the priorwritten approval of the other Party (which approval shall not be unreasonablywithheld, conditioned or delayed).  If inthe judgment of either Party such a news release or public announcement isrequired by Law or the rules or regulations of any stock exchange on whichsuch Party’s stock is traded, the Party intending to make such release orannouncement shall to the extent practicable use commercially reasonableefforts to provide prior written notice to the other Party of the contents ofsuch release or announcement and to allow the other Party reasonable time tocomment on such release or announcement in advance of such issuance.

 

6.5                                         Post-Closing Access to Records andPersonnel.

 

(a)                                  Exchange of Information.  After the Closing, each Party agrees to provide, or cause to beprovided, to each other, as soon as reasonably practicable after writtenrequest therefor and at the requesting Party’s sole expense, reasonable access(including using reasonable commercial efforts to give access to third partiespossessing information), during normal business hours, to the other Party’semployees and to any books, records, documents, files and correspondence in thepossession or under the control of the other Party that the requesting Partyreasonably needs (i) to comply with reporting, disclosure, filing or otherrequirements imposed on the requesting Party (including under applicablesecurities Laws) by a Governmental Authority having jurisdiction over therequesting Party, (ii) for use in any other judicial, regulatory,administrative or other proceeding or in order to satisfy Tax, audit,accounting, claims, regulatory, litigation or other similar requirements or (iii) tocomply with its obligations under this Agreement; provided, however,that no Party shall be required to provide access to or disclose informationwhere such access or disclosure would violate any Law or agreement, or waiveany attorney-client or other similar privilege, and each Party may redactinformation regarding itself or its Subsidiaries or otherwise not relating tothe other Party and its Subsidiaries, and, in the event such provision ofinformation could reasonably be expected to violate any Law or agreement orwaive any attorney-client or other similar privilege, the Parties shall takeall reasonable measures to permit the compliance with such obligations in amanner that avoids any such harm or consequence.

 

(b)                                 Financial and Other Information. After the Closing, each Party shall provide, or cause to be provided, assoon as reasonably practicable after written request therefor and at the soleexpense of the requesting Party, to the other Party such financial and otherdata and information reasonably available and in its possession (in such formas is reasonably available to it) as is reasonably requested by the other 

 

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Party and reasonablynecessary in order for such other Party to prepare required financialstatements and reports or filings, including Tax Returns, to be filed with anyGovernmental Authority; provided, however, that the out-of-pocketcost to prepare any financial statements of Purchaser after the Closing shallbe borne solely by Purchaser.

 

(c)                                  Ownership of Information. Any information owned by a Party that is provided to a requesting Partypursuant to this Section 6.5 shall be deemed to remain the property of theproviding Party.  Unless specifically setforth herein, nothing contained in this Agreement shall be construed asgranting or conferring rights of license or otherwise in any such information.

 

(d)                                 Record Retention. Except as otherwise provided herein, each Party agrees to use itsreasonable commercial efforts to retain the books, records, documents,instruments, accounts, correspondence, writings, evidences of title and otherpapers relating to the Business or the Purchased Assets, (the “Books andRecords”) in their respective possession or control for a commerciallyreasonable period of time, as set forth in their regular document retentionpolicies, as such may be amended from time to time, following the Closing Dateor for such longer period as may be required by Law or as may be reasonablyrequested in writing by any Party, or until the expiration of the relevantrepresentation or warranty under any of the Transaction Documents and anyrelated claim of indemnification related thereto.  Notwithstanding the foregoing, any Party maydestroy or otherwise dispose of any Books and Records not in accordance withits retention policy, provided that, prior to such destruction ordisposal (i) such Party shall provide no less than 90 nor more than 120days’ prior written notice to the other Party of any such proposed destructionor disposal (which notice shall specify in detail which of the Books andRecords is proposed to be so destroyed or disposed of), and (ii) if arecipient of such notice shall request in writing prior to the scheduled datefor such destruction or disposal that any of the information proposed to bedestroyed or disposed of be delivered to such recipient, such Party proposingthe destruction or disposal shall, as promptly as practicable, arrange for thedelivery of such of the Books and Records as was requested by the recipient (itbeing understood that all reasonable out of pocket costs associated with thedelivery of the requested Books and Records shall be paid by such recipient).

 

(e)                                  Limitation of Liability. No Party shall have any Liability to any other Party in the event thatany information exchanged or provided pursuant to this Section 6.5 isfound to be inaccurate.  No Party shallhave any Liability to any other Party if any information is destroyed or lostafter reasonable commercial efforts by such Party to comply with the provisionsof Section 6.5(d).

 

(f)                                    Other Agreements Providing For Exchangeof Information.  The rights and obligations granted under thisSection 6.5 are subject to any specific limitations, qualifications oradditional provisions on the sharing, exchange or confidential treatment ofinformation set forth in this Agreement.

 

(g)                                 Confidential Information. Nothing in this Section 6.5 shall require either Party to violateany agreement with any third parties regarding the confidentiality ofconfidential and proprietary information; provided, however, thatin the event that either Party is required under this Section 6.5 todisclose any such information, that Party shall use all commercially reasonableefforts to seek to obtain such third party’s consent to the disclosure of suchinformation and implement requisite procedures to enable the disclosure of suchinformation.

 

6.6                                         Employee Relations and Benefits.

 

(a)                                  Promptly following the execution of thisAgreement, Seller shall deliver to Purchaser a preliminary list (the “PreliminaryList”) of the Business Employees which shall be attached to the DisclosureLetter as Schedule 6.6 thereof and, within ten (10) days prior tothe Closing Date, Seller shall cause a final list of the Business Employees tobe delivered to Purchaser (the “Final List”) which shall 

 

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replace and supercede thePreliminary List as Schedule 6.6 of the Disclosure Letter. For the purposes ofthis Agreement, the term “Business Employees” shall mean those employeesreflected on the Final List. Seller agrees to use commercially reasonableefforts to cause Varian to provide Purchaser with reasonable access to and theopportunity to meet and interview each of the Business Employees for thepurpose of negotiating offers of employment contingent upon the consummation ofthe sale and transfer of the Purchased Assets to Purchaser and the othertransactions contemplated hereby. Seller further agrees to co-operate andconsult with Purchaser regarding Purchaser’s hiring of Business Employees andto use commercially reasonable efforts (without, for the avoidance of doubt,any requirement to pay any amount to any person) to encourage BusinessEmployees who have received an offer of employment from Purchaser to acceptsuch offer. The following provisions shall apply with respect to Purchaser’semployment of Business Employees:

 

(i)                                     Automatic Transferred Employees shall notbe terminated upon Closing, but rather the rights, powers, duties, liabilitiesand obligations of any of Seller, Varian or any of their respectiveSubsidiaries to such employees in respect of the material terms of employmentwith the employees in force immediately before Closing shall be transferred toPurchaser in accordance with applicable employment Laws.

 

(ii)                                  For Business Employees other thanAutomatic Transferred Employees, following consultation with Seller and theopportunity to meet with such employees, Purchaser shall make offers ofemployment, which shall be contingent and effective upon the Closing, to thoseBusiness Employees to whom Purchaser elects to extend offers of employment,each such offer to be for employment at a base salary or base wage rate atleast equal to such employee’s base salary or base wage rate in effectimmediately prior to the Closing and otherwise on terms, conditions andbenefits of employment (including cash and equity incentive opportunities andbenefits and bonus, except for bonuses and other payments related to thesubject matter of this Agreement) that are comparable on an aggregate basis tothe terms, conditions and benefits of employment of such employee with the VarianCompanies as of immediately prior to the Closing.

 

(iii)                               Seller and its Subsidiaries (includingthe Varian Companies) shall be permitted to take any action they are legallyrequired to take in order to comply with local employment Laws.

 

(iv)                              Those employees who are transferred toPurchaser and/or one of its Subsidiaries in accordance with clause (i) aboveand those who accept the offer of employment from Purchaser and/or one of itsSubsidiaries in accordance with clause (ii) above and, in each case, whocommence employment with Purchaser and/or one of its Subsidiaries shall bereferred to herein as “Transferred Employees.”  For purposes hereof, “commence employment”shall mean the date that such employees become employed by Purchaser.

 

(v)                                 Starting on the Closing Date, Purchasershall cause to be provided to each Transferred Employee the benefits providedto similarly situated employees under the employee benefit plans, agreements,programs, policies and arrangements of Purchaser and/or one of its Subsidiaries(the “Purchaser Plans”) unless otherwise required under local Law, inwhich case such benefits shall comply with local Law.

 

(vi)                              Except as set forth in the followingsentence below, any and all liabilities and obligations, whether arising undercontract, Seller’s Plans, local Laws or otherwise, to provide any termination,notice, severance or similar payments to any Business Employees arising out ofthe termination of their employment with Seller or its Subsidiaries at theClosing or Seller’s or its Subsidiaries’ automatic transfer of their employmentat the Closing, shall be borne by Seller. Purchaser shall assume and shallindemnify Seller and its Subsidiaries against all liabilities and obligationsto 

 

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provide any severance orsimilar payments to (A) any Automatic Transferred Employees, and (B) anyTransferred Employee whose employment is terminated by Purchaser or itsSubsidiaries following the Closing Date.

 

(b)                                 Seller shall retain responsibility forand continue to pay all medical, life insurance, disability and other welfareplan expenses and benefits for each Transferred Employee with respect to claimsincurred by such Transferred Employees or their covered dependents prior to theClosing Date.  Expenses and benefits withrespect to claims incurred by Transferred Employees or their covered dependentson or after the Closing Date shall be the responsibility of Purchaser.  For purposes of this paragraph, a claim isdeemed incurred: in the case of medical or dental benefits, when the servicesthat are the subject of the claim are performed; in the case of life insurance,when the death occurs; in the case of long-term disability benefits, when thedisability occurs; in the case of workers compensation benefits, when the eventgiving rise to the benefits occurs; and otherwise, at the time the TransferredEmployee or covered dependent becomes entitled to payment of a benefit(assuming that all procedural requirements are satisfied and claims applicationsproperly and timely completed and submitted).

 

(c)                                  With respect to any plan that is a “welfarebenefit plan” (as defined in Section 3(1) of ERISA), or any plan thatwould be a “welfare benefit plan” (as defined in Section 3(1) ofERISA) if it were subject to ERISA, maintained by Purchaser, Purchaser shall,to the extent permitted by the terms of such plan and applicable Law,  (i) cause there to be waived anypre-existing condition and waiting periods and (ii) give effect, indetermining any deductible and maximum out-of-pocket limitations, to claimsincurred and amounts paid by, and amounts reimbursed to, such employees duringthe plan year of the applicable plan sponsored by Seller, Varian or one oftheir respective Subsidiaries during which the Closing occurs with respect tosimilar plans maintained by Seller, Varian and their respective Affiliatesimmediately prior to the Closing Date.

 

(d)                                 Transferred Employees shall be givencredit for all service with Seller, Varian and any of their respective Subsidiaries,to the same extent as such service was credited for such purpose by Varian,under each Purchaser Plan in which such Transferred Employees are eligible toparticipate for purposes of eligibility, vesting and benefits accrual (butnot for purposes of benefit accruals or benefit amounts under any definedbenefit plan).

 

(e)                                  Except as required by applicable Law, asof the Closing Date, the Transferred Employees shall cease to accrue furtherbenefits under the employee benefit plans and arrangements maintained bySeller, Varian and/or their respective Subsidiaries and shall commenceparticipation in the Purchaser Plans. Seller shall take all necessary actions to fully vest the TransferredEmployees in their account balances under the Varian 401(k) plan or SellerRetirement Plan.  Purchaser shall takeall steps necessary to permit each such Transferred Employee who has receivedan eligible rollover distribution (as defined in Section 402(c)(4) ofthe Code) from the Varian 401(k) Plan and the Seller Retirement Plan, ifany, to roll such eligible rollover distribution, including any associatedloans, as part of any lump sum distribution to the extent permitted by theVarian 401(k) Plan and the Seller Retirement Plan into an account under a401(k) plan maintained by Purchaser (the “Purchaser’s 401(k) Plan”).  Notwithstanding the foregoing, Seller andPurchaser may mutually agree following the date hereof, but prior to theClosing Date, to provide for a trust to trust transfer of the account balancesof Transferred Employees under the Varian 401(k) Plan to the Purchaser’s401(k) Plan.

 

(f)                                    With respect to any accrued but unusedvacation time (including flexible time off and sick pay) as of the Closing Dateto which any Transferred Employee is entitled pursuant to the vacation policyapplicable to such Transferred Employee immediately prior to the Closing Date(the “Vacation Policy”), to the extent permitted by law, Purchaser shallassume such accrued but unused vacation time as of the Closing for eachTransferred Employee, provided however that Seller shall reimburse Purchaser to

 

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the extent that suchaccrued vacation obligation exceeds $2,500,000 (two million five hundredthousand U.S. dollars).

 

(g)                                 Purchaser shall indemnify and holdharmless Seller and its Subsidiaries with respect to any Liability under COBRAor similar applicable Laws in the United States arising from the actions (orinactions) of Purchaser or its Subsidiaries after the Closing Date.  Seller shall retain all Liabilities,including Liabilities with respect to any “qualifying event,” (as defined underCOBRA) incurred on or prior to the Closing Date or arising as a result of thetransactions described herein.

 

(h)                                 The Parties acknowledge and agree thatall provisions contained in this Section 6.6 with respect to employees areincluded for the sole benefit of the respective Parties and shall not createany right (i) in any other Person, including, without limitation, anyemployees, former employees, any participant in any Seller Plan or anybeneficiary thereof or (ii) to continued employment with Seller orPurchaser.

 

(i)                                     The Parties recognize that certain of theTransferred Employees are in nonimmigrant visa status or have applications forlawful permanent residence pending with the relevant governmental authorities(the “Affected Non-United States National Employees”).  The Parties further recognize that new oramended petitions with respect to such Affected Non-United States NationalEmployees may be required in certain of these cases, unless Purchaser (or itsAffiliates, as the case may be) is deemed the “successor-in-interest” to Selleror Varian, as applicable (as such term is used in pronouncements by the UnitedStates Citizenship and Immigration Service (“USCIS”)) with respect tosuch Affected Non-United States National Employees.  Accordingly, Purchaser hereby expresslyagrees to assume, and Seller hereby assigns, all of the immigration-relatedLiabilities of the Affected Non-United States National Employees (including,without limitation, any obligations, Liabilities and undertakings arising fromor under attestations made in each certified and still effective LaborCondition Application filed by Seller with respect to any such Affected Non-UnitedStates National Employees).  The Partieseach agree to take such actions as may reasonably be requested at and followingthe Closing to document to the USCIS or such other governmental agency, as thecase may be, as may be necessary, the “successor-in-interest” relationship withrespect to any Affected Non-United States National Employees.

 

6.7                                         Non-U.S. Employees.

 

In addition to Section 6.6as such section may be applicable to Non-U.S. Employees, this Section 6.7applies only to Non-U.S. Employees and certain former non-U.S. Employees (“Non-U.S.Former Employees”).

 

(a)                                  This Section 6.7 and Section 6.7(a) ofthe Disclosure Letter shall contain covenants and agreements of the Parties onand as of the Closing Date with respect to:

 

(i)                                     the Non-U.S. Employees; and

 

(ii)                                  Non-U.S. Benefit Plans listed in Section 6.7(a)(ii) ofthe Disclosure Letter, provided or covering such Non-U.S. Employees andNon-U.S. Former Employees.

 

(b)                                 Seller and Purchaser and their respectiveSubsidiaries shall comply with all obligations either under the TransferRegulations or other applicable Laws to notify and/or consult with Non-U.S.Employees or employee representatives, unions, works councils or other employeerepresentative bodies, if any, and shall provide such information to the otherParty as is required by that Party to comply with its notification and/orconsultation obligations.  Each Partyshall indemnify the other Party against all Losses 

 

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resulting from any failureof such Party to notify and/or consult or to provide such information in atimely manner.

 

(c)                                  The Parties acknowledge and agree thatall provisions contained in this Section 6.7 with respect to employees areincluded for the sole benefit of the respective Parties and shall not createany right (i) in any other Person, including, without limitation, anyemployees, former employees, any participant in any Seller Plan or anybeneficiary thereof or (ii) to continued employment with Seller orPurchaser.

 

6.8                                         Transition Services and SupplyArrangements.Seller shall provide certain services to Purchaser following the Closing inconnection with the transition of the Business to Purchaser pursuant to theterms and conditions of a Transition Services Agreement in substantially theform attached hereto as Exhibit F (the “Transition ServicesAgreement”). To the extent that Purchaser identifies, during the fourteenday period immediately following the signing of this Agreement, anycommercially reasonable changes that Purchaser deems necessary for thetransition of the Business to Purchaser, Seller and Purchaser agree to usecommercially reasonable efforts to resolve such matters by mutual agreement.Seller shall further cause Varian to supply certain components, products andrelated services to Purchaser pursuant to the terms and conditions of aSymmetrical Supply Agreement in substantially the form attached hereto as Exhibit G(the “Symmetrical Supply Agreement”).

 

6.9                                         Symmetrical Supply Agreement. Purchaser shall supply laboratory gas chromatography products andsystems, and associated spare parts, to Varian following the Closing pursuantto the terms and conditions of the Symmetrical Supply Agreement.

 

6.10                                   Insurance Matters. Purchaser acknowledges that the policiesand insurance coverage maintained on behalf of the Business are part of thecorporate insurance program maintained by Seller and its Subsidiaries, and suchcoverage will not be available or transferred to Purchaser (except with respectto Assumed Liabilities for which claims have been made by Seller or any of itsSubsidiaries against third party insurers under such policies on or prior tothe Closing Date, subject to Purchaser’s paying any applicable deductible withrespect to such claim).

 

6.11                                   Tax Matters.

 

(a)                                  Transfer Taxes.

 

(i)                                     For purposes of this Agreement, the term “TransferTaxes” shall mean all transfer, filing, recordation (including, withoutlimitation, the cost of recording the assignment or transfer of the TransferredIntellectual Property Rights and the Transferred Trademarks), *ad valorem*, value added, bulk sales, stamp duties, excise,license or similar fees or taxes.  TheLiability for Transfer Taxes shall be borne by Purchaser.  Seller and Purchaser shall cooperate witheach other in the provision of any information or preparation of anydocumentation that may be necessary or useful for obtaining any availablemitigation, reduction or exemption from any Transfer Taxes.

 

(ii)                                  Unless the Parties mutually agreeotherwise, any Tax Returns that must be filed in connection with any TransferTaxes shall be prepared by the Party required by law to file such TaxReturns.  The Party filing such Tax Return shall invoice and pay theTransfer Taxes shown on such Tax Return.  The filing  Party shall useits reasonable commercial efforts to provide the other  Party the TaxReturns which it is required to file at least 10 days before such Tax Returnsare due to be filed.  All such Tax Returns shall be consistent with theallocation of the Purchase Price as determined pursuant to Section 3.3. Seller and Purchaser shall settle their respective obligations for theLiability for Transfer Taxes as defined in Section 6.11 no later than thetime specified in Section 3.3.

 

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(b)                                 Other Tax Returns and Payment of Taxes.

 

(i)                                     Except as provided in Section 6.12(a),Seller shall be liable for and shall remit when due or cause to be remittedwhen due any amount of Taxes due in connection with the Purchased Assets forany taxable period ending on or before the Closing Date or for any Taxesrelated to the transactions contemplated by this Agreement (other than TransferTaxes).  Seller shall duly file or causeto be duly filed, any Tax Return required to be filed in respect of any Taxwhich it is required to pay pursuant to the immediately precedingsentence.  Except as provided in Section 6.12(a),Seller shall be liable for any other Taxes of Seller and any Other Seller forany taxable period (including any Liability of Seller or Other Seller for theunpaid Taxes of any Person under Treas. Reg. §1.1502-6 (or any similarprovision of state, local, or foreign law), as a transferee or successor, bycontract, or otherwise).

 

(ii)                                  As required by local law, Purchaser shallbe liable for and shall remit when due or cause to be remitted when due anyamount of Taxes due in connection with the Purchased Assets for any taxableperiod beginning after the Closing Date; provided, however, thatfor the avoidance of doubt Purchaser shall not be liable for any Income Taxesof Seller or any of Seller’s Subsidiaries not transferred to Purchaser.  Purchaser shall duly file or cause to be dulyfiled, any Tax Return required to be filed in respect of any Tax which it isrequired to pay pursuant to the immediately preceding sentence.

 

(iii)                               To the extent applicable, Purchaser shallprepare or cause to be prepared and file or cause to be filed any Tax Returnswith respect to the Purchased Assets for taxable periods which begin before theClosing Date and end after the Closing Date (a “Straddle Period”).  Purchaser shall provide a copy of any suchTax Return for Seller’s review and approval at least fifteen (15) Business Daysbefore filing.  Seller shall pay toPurchaser within five (5) Business Days after the date on which Taxes arepaid with respect to a Straddle Period an amount equal to the portion of suchTaxes which relates to the portion of such Straddle Period ending on theClosing Date.  For purposes of this Section 6.12(b)(iii),in the case of any Taxes that are imposed on a periodic basis and are payablefor a Straddle Period, the portion of such Tax that relates to the portion ofsuch taxable period ending on the Closing Date shall (x) in the case ofany Taxes other than Taxes based upon or related to income or receipts, bedeemed to be the amount of such Tax for the entire taxable period multiplied bya fraction the numerator of which is the number of days in the taxable periodending on and including the Closing Date and the denominator of which is thenumber of days in the entire taxable period, and (y) in the case of anyTax based upon or related to income or receipts be deemed to be equal to theamount which would be payable if the relevant taxable period ended on andincluded the Closing Date.  Any creditsrelating to a Straddle Period shall be taken into account as though therelevant taxable period ended on the Closing Date.  All determinations necessary to give effectto the foregoing allocations shall be made in a manner consistent with theprior practice of Seller.

 

(c)                                  Pre-Closing Settlement Payments. If, after the Closing Date, Purchaser or any of its Affiliates receivesany refund that is an Excluded Asset or utilizes the benefit of any overpaymentor prepayment of Taxes that are Excluded Assets, Purchaser shall, or shallcause such Affiliate to, promptly remit or cause to be remitted to Seller theentire amount of the refund or overpayment (including any interest paid by theGovernmental Authority paying the refund or the overpayment, but net of anyTaxes that may be due on such refund or interest amount after giving effect toany deductions in respect of the payment of such amounts to Seller) received orutilized by Purchaser or such Affiliate. If any such refund or benefit is subsequently reduced as a result of anadjustment required by any Governmental Authority, this Section 6.12(c) shalltake such adjusted refund or benefit into account.  If Purchaser or any of its Affiliates paysany amount to Seller pursuant to this Section 6.12(c) prior to suchadjustment, Seller shall repay the difference between the amount paid and theadjusted amount of the refund or benefit, as the case may be, to Purchaser, ifthe adjusted amount is less than the amount paid by Purchaser or such Affiliateto Seller pursuant to this Section 6.12(c), and Purchaser shall pay thedifference between the 

 

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adjusted amount of therefund or benefit and the amount paid by Purchaser or such Affiliate to Sellerif the amount paid by Purchaser or such Affiliate to Seller is less than theadjusted amount.

 

(d)                                 Cooperation and Assistance.

 

(i)                                     The Parties shall cooperate with eachother in the filing of any Tax Returns and the conduct of any audit or otherproceeding.  They each shall execute anddeliver such powers of attorney and make available such other documents as arereasonably necessary to carry out the intent of this Section 6.12.

 

(ii)                                  If (A) either Party is liable underthis Section 6.12, including any amounts due pursuant to Section 6.12(c),for any portion of a Tax shown due on any Tax Return required to be filed bythe other Party pursuant to this Section 6.12, or (B) Seller isrequired to file any Tax Return with respect to any of its Subsidiariespursuant to this Section 6.12, the Party obligated to file such Tax Returnpursuant to this Section 6.12 shall deliver a copy of the relevantportions of such Tax Return (taking into account any extensions, if applicable)to the liable Party.  If the Partiesdisagree as to the treatment of any item shown on such Tax Return or withrespect to any calculation with respect to any Tax Return to be filed pursuantto this Section 6.12, an independent public accounting firm acceptable toboth Seller and Purchaser shall determine, consistent with Seller’s pastpractice (except as otherwise required by Law), how the disputed item is to betreated on such Tax Return.

 

(iii)                               Upon request or upon payment, each Partyshall deliver to the tax director of the other Party certified copies of allreceipts for any foreign Tax with respect to which such other Party or any ofits Affiliates could claim a foreign tax credit and any supporting documentsrequired in connection with claiming or supporting a claim for such a foreigntax credit.

 

(iv)                              The Parties shall retain records,documents, accounting data and other information in whatever form that arenecessary for the preparation and filing, or for any Tax audit, of any and allTax Returns with respect to any Taxes that relate to taxable periods that donot begin after the Closing Date.  Suchretention shall be in accordance with the record retention policy of therespective Party, but in no event shall any Party destroy or otherwise disposeof such records, documents, accounting data and other information prior to theexpiration of the applicable statute of limitations (including extensions) andwithout first providing the other Party with a reasonable opportunity to reviewand copy the same.  Each Party shall giveany other Party reasonable access to all such records, documents, accountingdata and other information as well as to its personnel and premises to theextent necessary for a reasonable review or a Tax audit of such Tax Returns andrelevant to an obligation under this Section 6.12.

 

(v)                                 Seller shall use its reasonablecommercial efforts to provide Purchaser with a clearance certificate or similardocument(s) which may be required by any taxing authority to relievePurchaser of any obligation to withhold any portion of the payments to Sellerpursuant to this Agreement.

 

(e)                                  Tax Controversies. A Party shall promptly notify the other Party in writing promptly (butin no event later than 30 days) (a “Notification”) upon receipt ofnotice of any pending or threatened audits or assessments with respect to Taxesfor which such other Party (or any of its Affiliates) is liable under Section 6.12.  Failure to give such Notification shall notrelieve the indemnifying party from Liability under Section 6.12, exceptif and to the extent that the indemnifying party is actually prejudicedthereby.  Each Party shall be entitled totake control of the complete defense of any tax audit or administrative orcourt proceeding (a “Tax Claim”) relating to Taxes for which it may beliable, and to employ counsel of its choice at its expense; provided,that Seller and Purchaser shall jointly control the defense of any Tax Claimrelating to Taxes with respect to a Straddle Period for which Taxes are 

 

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allocated to both Sellerand Purchaser under Section 6.12(b)(iii) of this Agreement.  Notwithstanding the immediately precedingsentence, each Party shall be entitled to take control of the complete defenseof any Tax Claim relating to Taxes for which it is obligated to file a TaxReturn (but does not have any indemnification obligation hereunder) under this Section 6.12(or by Law), and to employ counsel of its choice at its expense; provided,that such Party unconditionally releases in writing the other Party from itsindemnification obligation hereunder with respect to such Tax Claim; providedfurther, that such Party shall take control of such Tax Claim within 60days of the earlier of (x) the date on which such Notification is providedor (y) the date such Notification is due pursuant to the first sentence ofthis Section 6.12(e).  If one Partytakes control of any such audit or proceeding, the other Party shall beentitled to participate, at its expense, in the defense of such audit orproceeding, and the Party controlling such audit or proceeding shall considerin good faith any suggestions made or points raised by the other Party.  Neither Party may agree to settle any claimfor Taxes for which the other may be liable without the prior written consentof such other Party, which consent shall not be unreasonably withheld.  This Section 6.12(e) shall governto the extent it would otherwise be inconsistent with Section 9.4(a).

 

6.12                                   Distributor Covenant. Seller agrees that, for a period of five years from the Closing, neitherit nor any of its Subsidiaries will market or sell (i) Agilent’s ICP-MSsystem(s) through any distributor that as of the date hereof or as ofClosing distributed Seller Products that were ICP-MS system(s), (ii) Agilent’sTriple Quadrupole GC-MS system(s) through any distributor that as of thedate hereof or as of Closing distributed Seller Products that were TripleQuadrupole GC-MS system(s) and (iii) Agilent’s Laboratory GC system(s) throughany distributor that as of the date hereof or as of Closing distributed SellerProducts that were Laboratory GC system(s) .

 

6.13                                   Mail Handling; Receivables and Payables.

 

(a)                                  To the extent that Purchaser receives anymail or packages addressed to Seller or its Subsidiaries and delivered toPurchaser not relating to the Business, the Purchased Assets or the AssumedLiabilities, Purchaser shall promptly deliver such mail or packages toSeller.  After the Closing Date, to theextent that Purchaser receives cash or checks or drafts made payable toPurchaser that constitutes an Excluded Asset, Purchaser shall promptly use suchcash to, or deposit such checks or drafts and upon receipt of funds from suchchecks or drafts, reimburse Seller within five (5) Business Days for suchamount received, or, if so requested by Seller, endorse such checks or draftsto Seller for collection.  Purchaser may not assert any set-off,hold-back, escrow or other restriction against any payment described in this Section 6.13.

 

(b)                                 To the extent that Seller receives anymail or packages addressed to Purchaser or its Subsidiaries and delivered toSeller relating to the Business, the Purchased Assets or the AssumedLiabilities, Seller shall promptly deliver such mail or packages toPurchaser.  After the Closing Date, tothe extent that Seller receives cash or checks or drafts made payable toPurchaser that constitutes a Purchased Asset, Seller shall promptly use suchcash to, or deposit such checks or drafts and upon receipt of funds from suchchecks or drafts, reimburse Purchaser within five (5) Business Days forsuch amount received, or, if so requested by Purchaser, endorse such checks ordrafts to Purchaser for collection. Seller may not assert any set-off, hold-back, escrow or otherrestriction against any payment described in this Section 6.13.

 

(c)                                  With respect to any systems customerorders which Purchaser assumes hereunder, to the extent Seller or any of itsAffiliates receives any prepayments, deposits, down payments or similar amountsprior to the Closing with respect to any such orders, Agilent shall pay orcause to be paid such amounts to Purchaser, less all costs incurred by Selleror such Affiliate of Seller in processing or partially fulfilling such order,within thirty (30) days after receipt by Seller of reasonably satisfactoryevidence of shipment to the relevant customer thereof by Purchaser.

 

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(d)                                 With respect to any prepayments orsimilar amounts that Seller or any of its Affiliates receive prior to theClosing for Service Contracts with respect to a period of performancethereunder falling after the Closing Date, Purchaser shall, within sixty (60)days after the Closing, provide to Seller a written list of all ServiceContracts that Purchaser has assumed hereunder where such prepayments have beenmade.  Purchaser shall furnish such listto Seller within such sixty (60) day period together with reasonablysatisfactory written evidence of the existence of such Service Contracts, themaking of prepayments thereunder by the customer with respect to periods ofperformance thereunder that fall after the Closing Date and the amount of suchprepayment for such post-Closing period. Seller shall, within ten (10) businessdays after receipt of such substantiating materials from Purchaser, pay toPurchaser the amount of such prepayment so received by Varian or Agilent forthe period of each such Service Contract that is to be performed by Purchaserfollowing the Closing Date. In this connection, whether or not there has beenany such prepayment or not, Purchaser will support all Service Contracts withrespect to the Business. Furthermore, to the extent Seller receives any servicecalls or Seller Product order requests that are exclusively related to theBusiness after the Closing, whether pursuant to a purchase order, contract,service contract, for on-call service or for other forms of service or SellerProduct purchases, Seller shall forward all such calls to Purchaser; provided,however, that if Seller receives any service or order calls that relate toSeller Products as well as products that are not Seller Products, Seller shallforward that portion of the service or order call that relates to SellerProducts to Purchaser.

 

6.14                           Non-Solicitation. Seller hereby agrees that, for a period of three years from the ClosingDate, it will not, directly or indirectly, solicit for employment anyTransferred Employees; provided, however, that the foregoing provisions willnot prevent the Seller from employing any such person who contacts Seller onhis or her own initiative without any direct or indirect solicitation by orencouragement from Seller other than solicitations made pursuant tonon-targeted general solicitations.

 

6.15                           Follow-Up Site Visits and ManagementInterviews.During the two week period immediately following the execution of thisAgreement, Purchaser shall be provided with the opportunity to conductconfirmatory site visits and management interviews at the principal offices andvarious field offices of the Business provided that such site visits andinterviews shall be arranged upon reasonable notice to Seller, shall notunreasonably disrupt the personnel and operations of the Varian Companies,shall comply with the reasonable security and insurance requirements of theVarian Companies and shall be at Purchaser’s sole risk and expense. To theextent that Purchaser identifies any materially adverse issue with respect tothe Business arising out of such visits or interviews that Purchaser was notaware of upon the signing of this Agreement, Seller and Purchaser agree to usecommercially reasonable efforts to resolve such issue by mutual agreement.

 

6.16                           Manufacturing Trademark License Agreement. Seller shall grant certain rights with respect to trademarks toPurchaser pursuant to the terms and conditions of that certain ManufacturingTrademark License Agreement in substantially the form attached as an exhibit tothe IPMA (the “MTLA”).

 

ARTICLE VII

CONDITIONS TOCLOSING

 

7.1                                         Conditions Precedent to Obligations ofPurchaser and Seller and the Other Sellers.

 

The respectiveobligations of the Parties to consummate and cause the consummation of thetransactions contemplated by this Agreement shall be subject to thesatisfaction (or written waiver by the Party for whose benefit such conditionexists) on or prior to the Closing Date of each of the following conditions:

 

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(a)                                  No Injunction, etc. No Governmental Authority of competent jurisdiction shall have enacted,issued, promulgated, enforced or entered any Law which is in effect on theClosing Date which has or would have the effect of prohibiting, enjoining orrestraining the consummation of the transactions contemplated by this Agreementto occur on the Closing Date or otherwise making such transactions illegal;

 

(b)                                 Regulatory Authorizations. The Consents of the Governmental Authorities listed in Section 7.1(b) ofthe Disclosure Letter shall have been obtained and shall be in full force andeffect; and

 

(c)                                  Consummation of Varian Merger. The Varian Merger shall have been consummated.

 

(d)                                 Escrow Agreement. The Escrow Agreement shall have been executed and delivered by each ofPurchaser, Seller and the Escrow Agent.

 

7.2                                         Conditions Precedent to Obligation ofSeller and the Other Sellers.  Theobligation of Seller and the Other Sellers to consummate and cause theconsummation of the transactions contemplated by this Agreement shall besubject to the satisfaction (or written waiver by Seller) on or prior to theClosing Date of each of the following conditions:

 

(a)                                  Accuracy of Purchaser’s Representationsand Warranties.  The representations and warranties ofPurchaser contained in this Agreement (i) that are qualified as to “PurchaserMaterial Adverse Effect” shall be accurate as of the Closing Date (except tothe extent such representations and warranties by their terms speak as of anearlier date, in which case they shall be accurate as of such date); and (ii) thatare not qualified as to “Purchaser Material Adverse Effect” shall be accurateas of the Closing Date (except to the extent such representations andwarranties by their terms speak as of an earlier date, in which case they shallbe accurate as of such date), except that any inaccuracies in suchrepresentations and warranties will be disregarded for purposes of this Section 7.2(a) ifsuch inaccuracies, considered collectively, do not have a Purchaser Material AdverseEffect as of the Closing Date; and Seller shall have received a certificatesigned by an authorized officer of Purchaser to such effect.

 

(b)                                 Covenants of Purchaser. Purchaser shall have complied in all material respects with allcovenants contained in this Agreement and the other Transaction Documents to beperformed by it prior to the Closing and Seller shall have received acertificate dated as of the Closing Date and signed by an authorized officer ofPurchaser to such effect.

 

(c)                                  Ancillary Agreements and OtherTransaction Documents.  Purchaser shall have executedand delivered the Ancillary Agreements and other Transaction Documents to theextent a party thereto, and each such agreement and document shall be in fullforce and effect.

 

(d)                                 Employees.  Both Partiesshall have complied with all covenants and satisfied all of the obligations setforth in Sections 6.6 and 6.7.

 

(e)                                  Business Plan. No later than three (3) Business Days after the execution of thisAgreement by both parties, Purchaser shall have prepared for submittal to allapplicable regulatory authorities a business plan with respect to Purchaser’splanned operation of the Purchased Assets and shall have presented such plan toSeller’s antitrust counsel. Furthermore, Purchaser shall, at its own expense,have taken all commercially reasonable actions to present such business plan tothe applicable regulatory authorities that will review the transactionscontemplated by this Agreement.

 

7.3                                         Conditions Precedent to Obligation ofPurchaser.  The obligation of Purchaser to consummate andcause the consummation of the transactions contemplated by this Agreement shallbe 

 

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subject to thesatisfaction (or waiver by Purchaser) on or prior to the Closing Date of eachof the following conditions:

 

(a)                                  Accuracy of Representations andWarranties of Seller.  The representations and warranties of Sellercontained in this Agreement and the other Transaction Documents (i) thatare qualified as to “Seller Material Adverse Effect” shall be accurate as ofthe Closing Date as though made on the Closing Date (except to the extent suchrepresentations and warranties by their terms speak as of an earlier date, inwhich case they shall be accurate as of such date); and (ii) that are notqualified as to “Seller Material Adverse Effect” shall be accurate as of theClosing Date (except to the extent such representations and warranties by theirterms speak as of an earlier date, in which case they shall be accurate as ofsuch date), except that any inaccuracies in such representations and warrantieswill be disregarded for purposes of this Section 7.3(a) if suchinaccuracies, considered collectively, do not have a Seller Material AdverseEffect as of the Closing Date; and Purchaser shall have received a certificatedated as of the Closing Date signed by an authorized officer of Seller to sucheffect.

 

(b)                                 Covenants of Seller. Seller shall have complied in all material respects with all covenantscontained in this Agreement and the other Transaction Documents to be performedby it prior to the Closing and Purchaser shall have received a certificatedated as of the Closing Date and signed by an authorized officer of Seller tosuch effect.

 

(c)                                  Ancillary Agreements and OtherTransaction Documents.  Seller shall have executed anddelivered, or caused each of the relevant Other Sellers to execute and deliver,the Ancillary Agreements and other Transaction Documents to the extent a partythereto, and each such agreement and document shall be in full force andeffect.

 

ARTICLE VIII

CLOSING

 

8.1                                         Closing Date. Unless this Agreement shall have been terminated pursuant to ARTICLEX hereof, (a) the parties shall use commercially reasonable efforts toeffect the closing of the sale and transfer of the Purchased Assets and theother transactions hereunder (the “Closing”) within one (1) BusinessDay after the consummation of the Varian Merger (provided that each of theother conditions set forth in ARTICLE VII hereof shall have been satisfied orduly waived at such time), and (ii) the Closing shall in any event takeplace within (3) Business Days after the satisfaction or waiver of each ofthe conditions set forth in ARTICLE VII hereof (other than those conditionsthat by their nature are to be satisfied at the Closing, but subject to thefulfillment or waiver of those conditions). The Closing shall take place at theoffices of Fenwick & West LLP at 555 California Street, Suite 1200,San Francisco, California at 10:00 a.m., local time, and in such otherplaces as are necessary to effect the transactions to be consummated at theClosing (such date of the Closing being herein referred to as the “ClosingDate”).  The effective time of theClosing for Tax, operational and all other matters shall be deemed to be 12:01 a.m.,local time in each jurisdiction in which the Business is conducted, on theClosing Date.

 

8.2                                         Purchaser Obligations. At the Closing, (i) Purchaser shall deliver the Purchase Price toSeller as provided in Section 3.2, (ii) Purchaser shalldeliver the Escrow Cash to the Escrow Agent, and (iii) Purchaser shall, orshall cause one or more of its Subsidiaries to execute and deliver to Sellerthe documents described in Section 7.2, and such other documentsand instruments as counsel for Purchaser and Seller mutually agree to bereasonably necessary to consummate the transactions described herein.

 

8.3                                         Seller Obligations. At the Closing, Seller shall execute and deliver to Purchaser, andSeller shall cause such of its Subsidiaries as are party thereto to execute anddeliver to Purchaser, the 

 

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documents described in Section 7.3,and such other documents and instruments as counsel for Purchaser and Sellermutually agree to be reasonably necessary to consummate the transactionsdescribed herein.

 

ARTICLE IX

ESCROW FUND ANDINDEMNIFICATION

 

9.1                                         Escrow Fund. The Escrow Cash shall be deposited with the Escrow Agent, such deposit,together with any interest that may be earned thereon, to constitute an escrowfund (the “Escrow Fund”) and to be governed by the provisions set forthherein and in the Escrow Agreement.  TheEscrow Fund shall be available to compensate Purchaser (on behalf of itself orany other Purchaser Indemnified Person (as such term is defined in Section 9.2(a) below))for Purchaser Losses (as such term is defined in Section 9.(2)(a) below)pursuant to the indemnification obligations of the Seller. Purchaser shall beresponsible for the fees, costs and expenses of the Escrow Agent.

 

9.2                                         Indemnification.

 

(a)                                  Following the Closing and subject to theterms and conditions of this ARTICLE IX, Seller shall for itself (where it isacting as Seller) and otherwise as agent for the Other Sellers indemnify,defend and hold harmless Purchaser, its Affiliates, and their respectiveofficers, directors, employees, stockholders, assigns and successors (each, a “PurchaserIndemnified Party” or collectively, the “Purchaser Indemnified Parties”)from and against, and shall compensate and reimburse each Purchaser IndemnifiedParty for, all Losses imposed upon or incurred by such Purchaser IndemnifiedParty (“Purchaser Losses”), with respect to (i) any breach of anyrepresentation or warranty of Seller set forth in this Agreement, any otherTransaction Document or in the certificate delivered pursuant to Section 7.2(a),(ii) any breach of any covenant or agreement of Seller herein or in anyother Transaction Document, or (iii) any Excluded Liabilities.  A Purchaser Indemnified Party shall not beentitled to recover more than once for the same Purchaser Loss.

 

(b)                                 Following the Closing and subject to theterms and conditions provided in this ARTICLE IX, Purchaser shall indemnify,defend and hold harmless Seller and its Affiliates and their respectiveofficers, directors, employees, stockholders, assigns and successors (each, a “SellerIndemnified Party”) from and against, and shall compensate and reimburseeach Seller Indemnified Party for, all Losses imposed upon or incurred by suchSeller Indemnified Party (“Seller Losses”), with respect to (i) anybreach of any representation or warranty of Purchaser set forth in thisAgreement, any other Transaction Document or in the certificate deliveredpursuant to Section 7.3(a), (ii) any breach of any covenant oragreement of Purchaser herein or in any other Transaction Document, or (iii) anyof the Assumed Liabilities.  A SellerIndemnified Party shall not be entitled to recover more than once for the sameSeller Loss.

 

(c)                                  For purposes of the foregoing Sections9.2(a)(i) and 9.2(b)(i), in determining the amount of any Purchaser Lossesor Seller Losses, as the case may be, no effect shall be given to anyqualification in the relevant representations and warranties as to materialityor Seller Material Adverse Effect; provided that full effect shall begiven to all such qualifications for purposes of determining the existence of abreach of any representation or warranty.

 

(d)                                 Notwithstanding the foregoing, PurchaserLosses and Seller Losses shall not include, and in no event shall any PurchaserLoss or Seller Loss be recoverable under the terms of this Agreement to theextent it consists of, indirect, consequential, punitive, special or exemplarydamages (provided however it is acknowledged and agreed that the SymmetricalSupply Agreement and the Transition 

 

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Services Agreement doprovide for the recovery of consequential damages upon and subject to the termsset forth therein).

 

9.3                                         Certain Limitations.

 

(a)                                  If the transactions contemplated by thisAgreement are consummated, recovery from the Escrow Fund shall be the sole andexclusive remedy of Purchaser for all obligations of Seller and its Affiliatesunder this Agreement and the other Transaction Documents. Notwithstandinganything contained herein to the contrary, no Purchaser Indemnified Person maymake a claim for any cash from the Escrow Fund in respect of any claim forindemnification that is made pursuant to clauses (i) and (ii) ofthe first sentence of Section 9.2(a), unless and until thePurchaser Indemnified Persons have incurred Purchaser Losses (excludingindividual Purchaser Losses or related Purchaser Losses less than the MinimumAmount (as defined below)) in excess of the Threshold (as defined below) whichare conclusively determined to be subject to indemnification hereunder and anotice of claim pursuant to Section 9.4 describing such PurchaserLosses in excess of the Threshold has been delivered prior to the EscrowRelease Date.

 

(b)                                 Notwithstanding anything contained hereinto the contrary, (i) Seller (on behalf of itself and as agent for theOther Sellers) shall not be obligated to indemnify Purchaser IndemnifiedParties for aggregate Purchaser Losses under this Agreement or any other TransactionDocument in an amount in excess of 20% of the Purchase Price, providedthat Purchaser Losses incurred with respect to Excluded Liabilities shall notbe counted toward the above-referenced 20% limit, and (ii) Purchaser (onbehalf of itself and as agent for any Affiliates) shall not be obligated toindemnify Seller Indemnified Parties for aggregate Seller Losses under thisAgreement or any other Transaction Document in an amount in excess of 20% ofthe Purchase Price, provided that Seller Losses incurred with respect toAssumed Liabilities shall not be counted toward the above-referenced 20% limit.

 

(c)                                  Notwithstanding anything contained hereinto the contrary, Seller (on behalf of itself and as agent for the OtherSellers) shall not be obligated to indemnify the Purchaser Indemnified Partiesunder this Agreement (x) with respect to any individual Purchaser Loss orseries of related Purchaser Losses involving an amount that is less than tenthousand dollars ($10,000) (the “Minimum Amount”) and (y) unlessand until the aggregate Purchaser Losses (excluding individual Purchaser Lossesor related Purchaser Losses less than the Minimum Amount) conclusivelydetermined to be subject to such indemnification collectively exceed threehundred thousand dollars ($300,000) (the “Threshold”), whereupon suchindemnification shall be made by Seller only with respect to the amount of suchPurchaser Losses (excluding individual Purchaser Losses or related PurchaserLosses less than the Minimum Amount) in excess of  the Threshold.

 

(d)                                 Notwithstanding anything contained hereinto the contrary, Purchaser shall not be obligated to indemnify the SellerIndemnified Parties under this Agreement (x) with respect to anyindividual Seller Loss or series of related Seller Losses involving an amountthat is less than the Minimum Amount and (y) unless and until theaggregate Seller Losses (excluding individual Seller Losses or related SellerLosses less than the Minimum Amount) conclusively determined to be subject tosuch indemnification collectively exceed the Threshold, whereupon suchindemnification shall be made by Purchaser only with respect to the amount ofsuch Seller Losses (excluding individual Seller Losses or related Seller Lossesless than the Minimum Amount) in excess of the Threshold.

 

(e)                                  The representations and warranties ofSeller and Purchaser contained in ARTICLE IV and ARTICLE V, respectively, ofthis Agreement and any other Transaction Document shall survive the Closinguntil the expiration of twelve (12) months following the Closing (the “EscrowRelease Date”), except for the representations and warranties contained in Section 4.8(Tax Matters) which shall survive 

 

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the Closing until theexpiration of 3 years following the Closing. The covenants and agreements contained in this Agreement shall survivethe Closing until the date or dates explicitly specified therein or, if not sospecified, until the expiration of the applicable statute of limitations withrespect to the matters contained therein provided that, notwithstandinganything herein to the contrary, the obligations of Purchaser and Affiliateswith respect to Assumed Liabilities, and the obligations of Seller and itsSubsidiaries with respect to Excluded Liabilities, shall survive the Closingfor an indefinite period.

 

(f)                                    The obligations to indemnify and holdharmless a Party pursuant to Sections 9.2(a)(i), 9.2(a)(ii), 9.2(b)(i) or9.2(b)(ii) shall terminate when the applicable representation, warranty orcovenant terminates pursuant to Section 9.3(e); provided, however,that any matter as to which a Notifying Party has asserted a claim forindemnity pursuant to this Article IX during the applicablesurvival period specified in Section 9.2(d) above which is pending orunresolved at the end of the applicable survival period shall continue to becovered by this Article IX until such matter is finally terminatedor otherwise resolved by the Parties or by a court of competent jurisdictionand any amounts payable hereunder are finally determined and paid.

 

(g)                                 Without limiting the effect of any otherlimitation contained in this ARTICLE VII, for purposes hereof, norepresentation or warranty of Seller in any Transaction Document is deemed tobe or to have been inaccurate if on or prior to the date of this Agreement, thePurchaser had knowledge of the inaccuracy of such representation or warranty.For the purposes of this Section 9.3(g), Purchaser will be deemed to haveknowledge of an inaccuracy of a representation and warranty of Seller if thefacts underlying such inaccuracy were disclosed to Purchaser, itsrepresentatives or advisors as part of (i) management presentationsconducted for Purchaser, its representatives and advisors in connection withthe transactions contemplated by this Agreement, or (ii) the data roomwhich was open for inspection by Purchaser, its representatives and advisorsprior to the date hereof.

 

9.4                                         Indemnification Procedures, Third PartyClaims.

 

(a)                                  General Claim Procedure. In the event any Indemnified Partyshould have a claim against any Indemnifying Party for indemnification ofLosses hereunder, the Notifying Party shall deliver a notice of such claim withreasonable promptness to the Indemnifying Party and, when the Notifying Party isthe Purchaser, to the Escrow Agent, stating in reasonable detail the nature andbasis of such claim (including, to the extent such claim relates to a ThirdParty Claim,  details of each claim madeby a third party in connection with such Third Party Claim and the provision ofcopies of the relevant documents received by the Indemnified Party evidencingsuch Third Party Claim), the amount of the claim, to the extent known, and thebasis for the indemnification sought. Notwithstanding the foregoing, any failureof the Notifying Party to give such notice promptly shall not relieve theIndemnifying Party from Liability on account of this indemnification, except ifand only to the extent that the Indemnifying Party is actually prejudicedthereby.  If the Indemnifying Partynotifies the Notifying Party that it does not dispute the claim described insuch notice or fails to notify the Notifying Party within thirty (30) daysafter delivery of such notice by the Notifying Party whether the IndemnifyingParty disputes the claim described in such notice, the Loss in the amountspecified in the Notifying Party’s notice shall be conclusively deemed aliability of the Indemnifying Party and, subject to the limitations set forthin this ARTICLE IX, the Purchaser Indemnifying Party shall pay the amount ofsuch Seller Loss to the Seller Indemnified Party on demand or the Escrow Agentshall release from the Escrow Fund an amount equal to the Purchaser Loss to thePurchaser Indemnified Party, as applicable. If the Indemnifying Party has timely disputed its liability with respectto such claim, the dispute shall be resolved in accordance with the provisionsof Section 11.1 below. Notwithstanding anything to the contrary containedherein, the Indemnifying Party shall pay, or the Escrow Agent on behalf of theSeller Indemnifying Party shall release from the Escrow Fund, as applicable,the amount of any such Loss no later than ten (10) business days followingthe determination of the Indemnifying Party’s liability (whether such determinationis made pursuant to the 

 

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procedures set forth inthis Section 9.4(a), by agreement between the Indemnifying Party and theNotifying Party or by final adjudication).

 

(b)                                 Third Party Claims. Promptly after the receipt by any Indemnified Party of a notice of anyProceeding by any third party that may be subject to indemnification under thisARTICLE IX, including any Proceeding relating to any Excluded Liability orAssumed Liability (a “Third Party Claim”), the Notifying Party shallgive written notice of such Proceeding to the Indemnifying Party in accordancewith Section 9.4(a) above. Notwithstanding the foregoing, failure ofthe Notifying Party to give such notice shall not relieve the IndemnifyingParty from Liability on account of this indemnification, except if and only tothe extent that the Indemnifying Party is actually prejudiced thereby.  Thereafter, the Notifying Party shall deliverto the Indemnifying Party, promptly after the Indemnified Party’s receiptthereof, copies of all notices and documents (including court papers) receivedby the Indemnified Party relating to the Proceeding.  The Indemnifying Party shall have the rightto assume the defense of the Indemnified Party against the Third Party Claimupon written notice to the Notifying Party delivered within thirty (30) daysafter receipt of the particular notice from the Notifying Party.  So long as the Indemnifying Party has assumedthe defense of the Third Party Claim in accordance herewith and notified theNotifying Party in writing thereof, (i) the Indemnified Party may retainseparate co-counsel at its own sole cost and expense and participate in thedefense of the Third Party Claim, (ii) the Indemnified Party shall notfile any papers or consent to the entry of any judgment or enter into anysettlement with respect to the Third Party Claim without the prior writtenconsent of the Indemnifying Party (not to be unreasonably withheld, conditionedor delayed) and (iii) the Indemnifying Party will not consent to the entryof any judgment or enter into any settlement with respect to the Third PartyClaim without the prior written consent of the Indemnified Party (not to beunreasonably withheld, conditioned or delayed). Whether or not the Indemnifying Party shall have assumed the defense,such Indemnifying Party shall not be obligated to indemnify and hold harmlessthe Indemnified Party hereunder for any settlement entered into without theIndemnifying Party’s prior written consent, which consent shall not beunreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, the provisions of this Section 9.4(a) shallnot apply to any claim with respect to Taxes, which shall be governed solely bySection 6.11.

 

(c)                                  Equitable Remedies. In the case of any Third Party Claims where the Indemnifying Partyreasonably believes that it would be appropriate to settle such claim usingequitable remedies (i.e., remedies involving the future activity and conduct ofthe Business), the Indemnifying Party and the Indemnified Party shall worktogether in good faith to agree to a settlement; provided, however,that no Party shall be under any obligation to agree to any such settlement.

 

(d)                                 Treatment of Indemnification Payments;Insurance Recoveries.  Any payment made pursuant to theindemnification obligations arising under this Agreement shall be treated as anadjustment to the Purchase Price.  Anyindemnity payment under this Agreement shall be decreased by any amountsactually recovered by the Indemnified Party under third party insurancepolicies with respect to such Loss (net of any premiums paid by suchIndemnified Party under the relevant insurance policy), each Party agreeing (i) touse all reasonable efforts to recover all available insurance proceeds and (ii) tothe extent that any indemnity payment under this Agreement has been paid by theIndemnifying Party to the Indemnified Party prior to the recovery by theIndemnified Party of such insurance proceeds, such amounts actually recoveredby the Indemnified Party shall be promptly paid to the Indemnifying Party.

 

9.5                                         Remedies Exclusive. Following the Closing, with the exception of remedies based on fraud,the indemnification rights set forth in this ARTICLE IX shall constitutethe sole and exclusive remedy for money damages and shall be in lieu of anyother remedies for money damages that may be available to the IndemnifiedParties under any other agreement or pursuant to any statutory or common law(including Environmental Law) with respect to any losses, damages, Liabilities,settlements, 

 

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judgments, awards,penalties, fines, costs or expenses (including, without limitation, reasonablelegal, expert and consultant fees and expenses) of any kind or nature incurreddirectly or indirectly resulting from or arising out of, under or with respectto any of this Agreement, the Business, the Purchased Assets, the ExcludedAssets, the IPMA, the MTLA, the Assumed Liabilities, the Excluded Liabilities,the Transition Services Agreement or any of the other Transaction Documents(other than the Symmetrical Supply Agreement) (it being understood that nothingin this Section 9.5 or elsewhere in this Agreement shall affect theParties’ rights to specific performance or other similar non-monetary equitableremedies with respect to the covenants referred to in this Agreement to beperformed after the Closing).  Seller andPurchaser each hereby waive any provision of any applicable Law to the extentthat it would limit or restrict the agreement contained in this Section 9.5.

 

9.6                                         Exercise of Remedies by Persons Otherthan the Parties.  No Purchaser Indemnified Party (other thanPurchaser or any successor or assignee of Purchaser) is entitled to assert anyindemnification claim or exercise any other remedy under this Agreement unlessPurchaser (or any successor or assignee of Purchaser) consents to the assertionof the indemnification claim or the exercise of the other remedy.  No Seller Indemnified Party (other thanSeller or any successor or assignee of Seller) is entitled to assert anyindemnification claim or exercise any other remedy under this Agreement unlessthe Seller (or any successor or assignee of Seller) consents to the assertionof the indemnification claim or the exercise of the other remedy.

 

ARTICLE X

TERMINATION

 

10.1                                   Termination Events. Without prejudice to other remedies which may be available to theParties by Law or this Agreement, this Agreement may be terminated and thetransactions contemplated herein may be abandoned:

 

(a)                                  by mutual consent of the Parties;

 

(b)                                 by any Party by notice to the other Partyin the event of the termination of the Varian Merger Agreement in accordancewith its terms;

 

(c)                                  after July 25, 2010 (the “Outer Date”),by any Party by notice to the other Party if the Closing shall not have beenconsummated on or prior to the Outer Date; provided, however,that the right to terminate this Agreement under this Section 10.1(b) shallnot be available to any Party whose failure or whose Affiliate’s failure toperform in all material respects any of its obligations under this Agreementhas been the cause of, or resulted in, the failure of the Closing to occur onor before such date; provided, further, that in the event of such failure byone Party or its Affiliate, the other Party may extend such period for anadditional period of up to a maximum of 30 days to enable such Party or itsAffiliate to satisfy the conditions set forth in Section 7.1(b); or

 

(d)                                 by any Party by notice to the otherParty, if (i) a final, non-appealable order, decree or ruling enjoining orotherwise prohibiting consummation of the transactions contemplated by thisAgreement to occur on the Closing Date has been issued by any federal or statecourt in the United States having jurisdiction (unless such order, decree orruling has been withdrawn, reversed or otherwise made inapplicable) or any U.S.federal or state Law has been enacted that would make the consummation of thetransactions contemplated by this Agreement to occur on the Closing Dateillegal.

 

10.2                                   Effect of Termination. In the event of any termination of this Agreement as provided in Section 10.1,this Agreement shall forthwith become wholly void and of no further force andeffect, all 

 

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further obligations ofthe parties under this Agreement shall terminate and there shall be noLiability on the part of any Party (or any stockholder, director, officer,employee, agent, consultant or representative of such Party) to any other Party(or such other persons or entities), except that the provisions of Sections 6.2(b),6.4 and ARTICLE XI of this Agreement shall remain in full forceand effect and the Parties shall remain bound by and continue to be subject tothe provisions thereof.  Notwithstandingthe foregoing, the provisions of this Section 10.2 shall notrelieve either party of any Liability for willful breach of this Agreement.

 

ARTICLE XI

MISCELLANEOUSAGREEMENTS OF THE PARTIES

 

11.1                                   Dispute Resolution. Except as otherwise set forth herein, resolution of any and all disputesarising from or in connection with this Agreement, whether based on contract,tort, or otherwise, including any claims by any Party for indemnification ofLosses pursuant to ARTICLE IX (collectively, “Disputes”), shall beexclusively governed by and settled in accordance with the provisions of this Section 11.1.

 

(a)                                  Negotiation. The Parties shall make a good faith attempt to resolve any Disputearising out of or relating to this Agreement through negotiation.  Within thirty (30) days after notice of aDispute is given by either Party to the other Party, representatives of eachParty shall meet and make a good faith attempt to resolve such Dispute andshall continue to negotiate in good faith in an effort to resolve the Disputewithout the necessity of any formal proceedings.  If the Dispute has not been resolved withinthirty (30) days of the first meeting of the Parties for such purpose, thensuch Dispute shall be referred to the Chief Financial Officer of each Party whoshall meet within thirty (30) days after the end of the first 30 daynegotiating period to attempt to resolve the matter.  During the course of negotiations under this Section 11.1,all reasonable requests made by one Party to the other for information,including requests for copies of relevant documents, will be honored.  The specific format for such negotiationswill be left to the discretion of the designated negotiating teams but mayinclude the preparation of agreed upon statements of fact or written statementsof position furnished to the other Party. All negotiations between the Parties pursuant to this Section 11.1(a) shallbe treated as compromise and settlement negotiations.  Nothing said or disclosed, nor any documentproduced, in the course of such negotiations that is not otherwiseindependently discoverable shall be offered or received as evidence or used forimpeachment or for any other purpose in any current or future litigation.

 

(b)                                 Failure to Resolve Disputes. In the event that any Dispute arising out of or related to thisAgreement is not settled by the Parties within fifteen (15) days after thefirst meeting of the Chief Financial Officers of the Parties under Section 11.1(a),the Parties may seek any remedies to which they may be entitled in accordancewith the terms of this Agreement.

 

(c)                                  Proceedings. Nothing herein, however, shall prohibit either Party from initiatinglitigation or other judicial or administrative proceedings if such Party wouldbe substantially harmed by a failure to act during the time that such goodfaith efforts are being made to resolve the Dispute through negotiation.  In the event that litigation is commencedunder this Section 11.1(c), the Parties agree to continue to attempt toresolve any Dispute according to the terms of Section 11.1(a) duringthe course of such litigation proceedings under this Section 11.1(c).

 

(d)                                 Pay and Dispute. Except as provided herein, in the event of any dispute regarding paymentof a third-party invoice (subject to standard verification of receipt ofproducts or services), the Party named in a third party’s invoice must maketimely payment to such third party, even if the Party named in the invoicedesires to pursue the dispute resolution procedures outlined in this Section 11.1.  If 

 

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the Party that paid theinvoice is found pursuant to this Section 11.1 to not be responsible forsuch payment, such paying Party shall be entitled to reimbursement, withinterest accrued at an annual rate of the Prime Rate, from the Party foundresponsible for such payment.

 

11.2                                   Notices.  Allcommunications provided for hereunder shall be in writing and shall be deemedto be given when delivered in person, upon receipt by the sender of answer-backconfirmation when telefaxed, or on the next Business Day when sent by overnightcourier, and

 
| If to Seller:    |   | Agilent Technologies, Inc.            |
|------------------|--------|--------------------------------------------|
|             |   | 5301 Stevens Creek Boulevard               |
|             |   | Santa Clara, CA 95051                      |
|             |   | Attention: Chief  Executive Officer        |
|             |   | Facsimile: (408)  345-8958                 |
|             |   |                                       |
| with copies to:  |   | Agilent Technologies, Inc.            |
|             |   | 5301 Stevens Creek Boulevard               |
|             |   | Mailstop 1A-11                             |
|             |   | Santa Clara, CA 95051                      |
|             |   | Attention: Marie Oh Huber, General Counsel |
|             |   | Telephone: (408)  345-8039                 |
|             |   | Facsimile: (408)  345-8958                 |
|             |   |                                       |
|             |   | Fenwick & West  LLP               |
|             |   | 555 California Street,  12th Floor    |
|             |   | San Francisco, CA 94104                    |
|             |   | Attention:                                 |  Douglas N. Cogen |
|  

    |   |                                       |  Lynda M. Twomey |
|             |   | Telephone: (415)  875-2300                 |
|             |   | Facsimile: (415)  281-1350                 |
|             |   |                                       |
| If to Purchaser: |   | Bruker Corporation                         |
|             |   | 40 Manning Road                            |
|             |   | Billerica, MA 01821                        |
|             |   | Attention:                                 |  Frank H. Laukien, Ph.D. |
|             |   |                                       |  President and Chief Executive Officer |
|             |   | Telephone: (978) 663-3660                  |
|             |   | Facsimile: (978) 667-2917                  |
|             |   | Email: frank.laukien@bruker.com            |
|             |   |                                       |
| with a copy to:  |   | Nixon Peabody LLP                          |
|             |   | 100 Summer Street                          |
|             |   | Boston, MA 02110                           |
|             |   | Attention: Richard M.  Stein               |
|             |   | Telephone: (617)  345-6193                 |
|             |   | Facsimile: (866)  382-6139                 |
|             |   | Email:  rstein@nixonpeabody.com            |

 

or to such other addressas any such Party shall designate by written notice to the other Party.

 

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11.3                                   Bulk Transfers. Purchaser waives compliance with the provisions of all applicable Lawsrelating to bulk transfers in connection with the transfer of the PurchasedAssets.

 

11.4                                   Severability. If any provision of this Agreement shall be declared by any court ofcompetent jurisdiction to be illegal, void or unenforceable, all otherprovisions of this Agreement and the application of such provision to otherpersons or circumstances other than those which it is determined to be illegal,void or unenforceable, shall not be impaired or otherwise affected and shallremain in full force and effect to the fullest extent permitted by applicableLaw, and Seller and Purchaser shall negotiate in good faith to replace suchillegal, void or unenforceable provision with a provision that corresponds asclosely as possible to the intentions of the Parties as expressed by suchillegal, void or unenforceable provision.

 

11.5                                   Further Assurances; Further Cooperation. Subject to the terms and conditions hereof, each of the Parties agreesto use commercially reasonable efforts to execute and deliver, or cause to beexecuted and delivered, all documents and to take, or cause to be taken, allactions that may be reasonably necessary or appropriate, in the reasonableopinion of counsel for Seller and Purchaser, to effectuate the provisions ofthis Agreement, provided that all such actions are in accordance withapplicable Law.  From time to time, whetherat or after the Closing, Seller or its Subsidiaries (as appropriate) willexecute and deliver such further instruments of conveyance, transfer andassignment and take such other action, at Purchaser’s sole expense, asPurchaser may reasonably require to more effectively convey and transfer toPurchaser any of the Purchased Assets and, solely as stated in the IPMA, any ofthe Transferred Intellectual Property Rights, Transferred Trademarks or theTransferred Licenses, and Purchaser will execute and deliver such furtherinstruments and take such other action, at Seller’s sole expense, as Seller orits Subsidiaries may reasonably require to more effectively assume the AssumedLiabilities.

 

11.6                                   Counterparts. This Agreement may be executed in two or more counterparts, each ofwhich shall be deemed to be an original and all of which together shall bedeemed to be one and the same instrument. Copies of executed counterparts transmitted by telecopy, telefax orother electronic transmission service shall be considered original executedcounterparts for purposes of this Section 11.6.

 

11.7                                   Expenses.  Except asotherwise expressly provided herein, whether or not the Closing occurs, Sellerand Purchaser shall each pay their respective expenses (such as legal, investmentbanker and accounting fees) incurred in connection with the negotiation andexecution of this Agreement, the Ancillary Agreements and the other TransactionDocuments and the consummation of the transactions contemplated hereby andthereby.

 

11.8                                   Assignment.  ThisAgreement shall not be assigned by either Party without the prior writtenconsent of the other Party, and any attempted assignment, without such consent,shall be null and void.  Subject to thepreceding sentence, this Agreement will be binding upon, inure to the benefitof, and be enforceable by the Parties and their respective successors andpermitted assigns.

 

11.9                                   Amendment; Waiver. This Agreement may be amended, supplemented or otherwise modified onlyby a written instrument executed by both Parties.  No waiver by either Party of any of theprovisions hereof shall be effective unless explicitly set forth in writing andexecuted by the Party so waiving.  Exceptas provided in the preceding sentence, no action taken pursuant to thisAgreement, including any investigation by or on behalf of any Party, or afailure or delay by any Party in exercising any power, right or privilege underthis Agreement shall be deemed to constitute a waiver by the Party taking suchaction of compliance with any representations, warranties, covenants, oragreements contained herein, and in any documents delivered or to be deliveredpursuant to this Agreement and in connection with the Closing hereunder.  The waiver by any Party of a breach of anyprovision of this Agreement shall not operate or be construed as a waiver ofany subsequent breach.

 

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11.10                             Specific Performance. The Parties agree that irreparable damage would occur if any provisionof this Agreement was not performed in accordance with the terms hereof andthereof and that the Parties shall be entitled (without the requirement to posta bond or other security) to an injunction or injunctions to prevent breachesof this Agreement and to enforce specifically the terms and provisions of thisAgreement in addition to any other remedy to which they are entitled at law orin equity.  The rights and remedies ofthe Parties shall be cumulative (and not alternative).

 

11.11                             Third Parties. This Agreement does not create any rights, claims or benefits inuring toany Person that is not a Party nor create or establish any third partybeneficiary hereto other than the provisions of ARTICLE IX hereof withrespect to indemnification but subject to the terms thereof.

 

11.12                             Governing Law. This Agreement and all claims arising out of this Agreement shall begoverned by, and construed in accordance with, the internal Laws of the Stateof California (whether arising in contract, tort, equity or otherwise), withoutregard to any conflicts of law principles that would result in the applicationof any law other than the law of the State of California.

 

11.13                             Consent to Jurisdiction. Each Party irrevocably submits to the exclusive jurisdiction of theUnited States District Court located in Santa Clara County, California, or ifsuch court does not have jurisdiction, the superior courts of the State ofCalifornia located in Santa Clara County, for the purposes of any suit, actionor other proceeding arising out of this Agreement or any transactioncontemplated hereby.  Each of theParties, further agrees that service of any process, summons, notice ordocument by U.S. registered mail to such Party’s respective address set forthin Section 11.2 shall be effective service of process for anyaction, suit or proceeding in California with respect to any matters to whichit has submitted to jurisdiction as set forth above in the immediatelypreceding sentence.  Each of the Parties,irrevocably and unconditionally waives any objection to the laying of venue ofany action, suit or proceeding set forth above arising out of this Agreement orthe transactions contemplated hereby, and hereby further irrevocably andunconditionally waives and agrees not to plead or claim in any such court thatany such action, suit or proceeding brought in any such court has been broughtin an inconvenient forum.

 

11.14                             Disclosure Letter. Disclosures included in any section of the Disclosure Letter shall beconsidered to be made for purposes of another section to the Disclosure Letterto the extent that the relevance or applicability of the disclosure to suchother section of the Disclosure Letter is reasonably apparent.  Inclusion of any matter or item in theDisclosure Letter does not imply that such matter or item would, under theprovisions of this Agreement, have to be included in the Disclosure Letter orthat such matter or item is otherwise material.

 

11.15                             Entire Agreement. This Agreement, the Ancillary Agreements, the other TransactionDocuments, the Confidentiality Agreement, Annex A, the Disclosure Letterand the Exhibits and Schedules hereto set forth the entire understanding of theParties with respect to the subject matter hereof and there are no agreements,understandings, representations or warranties between the Parties or theirrespective Subsidiaries other than those set forth or referred to herein ortherein.  In the event of anyinconsistency between the provisions of this Agreement and any otherTransaction Document, the provisions of this Agreement shall prevail.

 

11.16                             No Joint Venture. Nothing in this Agreement creates a joint venture or partnership betweenthe Parties.  This Agreement does notauthorize any Party (a) to bind or commit, or to act as an agent, employeeor legal representative of, another Party, except as may be specifically setforth in other provisions of this Agreement, or (b) to have the power tocontrol the activities and operations of another Party.  The Parties are independent contractors withrespect to each other under this Agreement. Each Party agrees not to hold itself out as having any authority orrelationship contrary to this Section 11.17.

 

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11.17                             Limitation on Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHERTRANSACTION AGREEMENT TO THE CONTRARY, EXCEPT AS EXPRESSLY PROVIDED IN THETRANSITION SERVICES AGREEMENT OR THE SYMMETRICAL SUPPLY AGREEMENT, IN NO EVENTWILL ANY PARTY OR ANY OF ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INCIDENTAL,CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOSTPROFITS, LOSS OF REVENUE OR LOST SALES) IN CONNECTION WITH ANY CLAIMS, LOSSES,DAMAGES OR INJURIES ARISING OUT OF THE CONDUCT OF SUCH PARTY PURSUANT TO THISAGREEMENT REGARDLESS OF WHETHER THE NONPERFORMING PARTY WAS ADVISED OF THEPOSSIBILITY OF SUCH DAMAGES OR NOT.

 

[SIGNATURE PAGESFOLLOW]

 

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**INWITNESS WHEREOF**,the Parties have caused this Asset Purchase Agreement to be duly executed as ofthe date first above written.

 

 
|   | **BRUKER CORPORATION**         |
|--------|--------------------------------|
|   |                           |
|   |                           |
|   | By:                            | /s/ Frank H. Laukien |
|   |                           | Name: Frank H. Laukien |
|   |                           | Title: President &  Chief Executive Officer |
|   |                           |
|   |                           |
|   | **AGILENT TECHNOLOGIES, INC.** |
|   |                           |
|   |                           |
|   | By:                            | /s/ Sheila Barr  Robertson |
|   |                           | Name: Sheila Barr  Robertson |
|   |                           | Title: Vice President,  Corporate Development and Strategy |

 

**[SIGNATUREPAGE TO ASSET PURCHASE AGREEMENT]**

 

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**ANNEX A**

 

“Affiliate” means (a) inthe case of an individual, the members of the immediate family (includingparents, siblings and children) of (i) the individual, (ii) theindividual’s spouse, and (iii) any Business Entity that directly orindirectly, through one or more intermediaries controls, or is controlled by,or is under common control with any of the foregoing individuals, or (b) inthe case of a Business Entity, another Business Entity or a person thatdirectly or indirectly, through one or more intermediaries controls, or iscontrolled by, or is under common control with the Business Entity.

 

“Agreement” shallhave the meaning set forth in the Recitals to this Agreement.

 

“Assumed Contracts”has the meaning set forth in Section 2.1 hereof.

 

“Automatic TransferredEmployees” shall mean those Business Employees where local employment Laws,including but not limited to the Transfer Regulations, provide for an automatictransfer of employees upon the transfer of a business as a going concern and suchtransfer occurs by operation of Law.

 

“Business” meansthe business conducted by Seller and its Subsidiaries as of immediately priorto the Closing that is exclusively related to the development, manufacturing,marketing, distribution, sale, support and maintenance of the Seller Products.

 

“Business Day”means any day other than a Saturday, a Sunday or a day on which banks inCalifornia are permitted or required by Law to close.

 

“Business Employee”shall mean (i) the employees of any of the Varian Companies engaged in theBusiness as set forth in Schedule 6.6 to the Disclosure Letter (whichschedule shall be delivered to Purchaser promptly following the signing of thisAgreement and further revised prior to the Closing as contemplated pursuant to Section 6.6hereof), including (A) any such employees on temporary leave for purposesof jury or annual two-week national service/military duty, or equivalent underlocal Law, employees on vacation and employees on a regularly scheduled day offfrom work and (B) any such employees who on the Closing Date are onmaternity or paternity leave, education leave, military leave with veteran’sre-employment rights under federal Law, leave under the Family Medical LeaveAct of 1993, approved personal leave, short-term disability leave or medicalleave or equivalent under local Law, unless otherwise required under localemployment Laws, excluding any such employees on long-term disability or whoseemployment with any of the Varian Companies has terminated prior to the Closing,(ii) each additional employee of any of the Varian Companies hired by theBusiness between the date hereof and the Closing Date in the ordinary course ofbusiness or hired by any of the Varian Companies in the ordinary course ofbusiness to replace employees who have terminated employment or taken leavebetween the date hereof and the Closing Date, and (iii) each otheremployee of any of the Varian Companies that Seller and Purchaser have mutuallyagreed to prior to the Closing Date or whose transfer to Purchaser and itsSubsidiaries is required under local Law.

 

“Business Entity”means any corporation (including any non-profit corporation), generalpartnership, limited partnership, limited liability partnership, joint venture,estate, trust, company (including any limited liability company or joint stockcompany), firm or other enterprise, association, organization, entity or group(as defined in Section 13(d)(3) of the Securities Exchange Act of1934).

 

“Business Technology”shall have the meaning set forth in the IPMA.

 

“COBRA” means theConsolidated Omnibus Budget Reconciliation Act of 1985, as amended.

 

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“Code” shall meanthe Internal Revenue Code of 1986, as amended.

 

“Consent” has themeaning set forth in Section 6.3 hereof.

 

“Contract” meansany written or oral commitment, contract, subcontract, license, sublicense,lease, instrument, indenture, note or legally binding commitment or undertakingof any nature.

 

“Environmental Claim”shall mean any written claim, proceeding, suit, complaint, or notice ofviolation alleging violation of, or Liability under, any Environmental Laws.

 

“Environmental Laws”shall mean any applicable foreign, federal, state or local Laws, statutes,regulations, codes, ordinances, permits, decrees, orders or common law relatingto, or imposing standards regarding the protection or clean-up of theenvironment, any Hazardous Material Activity, the preservation or protection ofwaterways, groundwater, drinking water, air, wildlife, plants or other naturalresources, or the exposure of any individual to Hazardous Materials, includingwithout limitation protection of health and safety of employees.  Environmental Laws shall include, withoutlimitation, the Federal Insecticide, Fungicide Rodenticide Act, ResourceConservation & Recovery Act, Clean Water Act, Safe Drinking Water Act,Atomic Energy Act, Occupational Safety and Health Act, Toxic Substance ControlAct, Clean Air Act, Comprehensive Environmental Response, Compensation andLiability Act, Emergency Planning and Community Right-to-Know Act, HazardousMaterials Transportation Act and all analogous or related foreign, federalstate or local law, each as amended.

 

“Escrow Cash”means an amount of cash equal to 20% of the Purchase Price.

 

“Excluded Assets”has the meaning set forth in Section 2.2 hereof.

 

“Hazardous Materials”shall mean any infectious, carcinogenic, radioactive, toxic or hazardouschemical or chemical compound, or any pollutant, contaminant or hazardoussubstance, material or waste, in each case, whether solid, liquid or gas,including, without limitation, petroleum, petroleum products, by-products orderivatives and asbestos and any other substance, material or waste that issubject to regulation, control or remediation under any Environmental Law.

 

“Hazardous MaterialsActivity” means the transportation, transfer, recycling, storage, use,disposal, arranging for disposal, treatment, manufacture, removal, remediation,release, exposure of others to, sale, or distribution of any Hazardous Materialor any product or waste containing a Hazardous Material, or productmanufactured with Ozone depleting substances, including, without limitation,any required labeling, payment of waste fees or charges (including so-callede-waste fees) and compliance with any product take-back or product contentrequirements.

 

“Income Tax” shallmean all Taxes based upon, measured by, or calculated with respect to (i) grossor net income or gross or net receipts or profits (including, but not limitedto, any capital gains, minimum Taxes and any Taxes on items of tax preference,but not including sales, use, goods and services, real or personal propertytransfer or other similar Taxes), (ii) multiple bases (including, but notlimited to, corporate franchise, doing business or occupation Taxes) if one ormore of the bases upon which such Tax may be based upon, measured by, orcalculated with respect to, is described in clause (i) above or (iii) withholdingtaxes measured by, or calculated with respect to, any payments or distributions(other than wages).

 

“Indebtedness”means (i) all outstanding obligations for senior debt and subordinateddebt and any other outstanding obligation for borrowed money, including thatevidenced by notes, bonds, debentures or other instruments (and including alloutstanding principal, prepayment premiums, if any, 

 

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and accrued interest,fees and expenses related thereto), (ii) any outstanding obligations undercapital leases and purchase money obligations (other than trade accountspayable), (iii) any amounts owed with respect to drawn letters of creditand (iv) any outstanding guarantees of obligations of the type describedin clauses (i) through (iii) above.

 

“Indemnified Party”shall mean a Purchaser Indemnified Party or a Seller Indemnified Party, as thecase may be.

 

“Indemnifying Party”shall mean the Party obligated to indemnify a Notifying Party’s IndemnifiedParties.

 

“Industry-Wide Plan”means any scheme, plan, fund or arrangement, which provides Retirement Benefitsto or in respect of Automatic Transferred Employees in which employers mayparticipate even if they are not within the same corporate group as the otherparticipating employers.

 

“Intellectual PropertyRights” or “IPR” means the rights associated with the followinganywhere in the world: (a) patents and utility models, and applicationstherefore (including any continuations, continuations-in-part, divisionals,reissues, renewals, extensions or modifications for any of the foregoing) (“Patents”);(b) trade secrets and all other rights in or to confidential business ortechnical information (“Trade Secrets”); (c) copyrights, copyrightregistrations and applications therefore, moral rights and all other rightscorresponding to the foregoing (“Copyrights”); (d) industrialdesign rights and any registrations and applications therefore (“IndustrialDesigns”); (e) databases and data collections (including knowledgedatabases, customer lists and customer databases) under the laws of anyjurisdiction, whether registered or unregistered, and any applications forregistration therefor (“Database Rights”); (f) mask works, and maskwork registrations and applications therefor (“Mask Work Rights”); (g) trademarks and service marks,whether registered or unregistered, and the goodwill appurtenant to each of theforegoing (“Trademarks”); and (h) any similar, corresponding orequivalent rights to any of the foregoing. Intellectual Property Rights specifically excludes contractual rights(including license grants from third parties).

 

“IRS” shall meanthe United States Internal Revenue Service.

 

To “the knowledge of”a Party shall mean, with respect to Seller, the actual knowledge of GordonTredger, Peter De Haan, John Miller, John Pulsford, Sean Wirtjes, Paul van denEngel, Emyr Lewis, Pim Janse, Andrew Ryan, Dr. Iouri Kalinitchenko, JohnIvett, Seamus Flanagan, Chris Kellogg, Felician Muntean and Charlie Schmidt,and with respect to Purchaser, the actual knowledge of the senior executiveofficers of Purchaser.

 

“Landlord” shallmean a landlord, sublandlord, licensor or other party granting the right to useor occupy real property.

 

“Law” means anylaw, treaty, statute, ordinance, rule, principle of common law or equity, codeor regulation of a Governmental Authority or judgment, decree, order, writ,award, injunction or determination of an arbitrator or court or otherGovernmental Authority.

 

“Liabilities”shall mean any debt, liability or obligation (whether pecuniary or not, whetherknown or unknown, whether asserted or unasserted, whether absolute orcontingent, whether accrued or unaccrued, whether liquidated or unliquidated,and whether due or to become due).

 

“Liens” shall meanany mortgage, easement, lease, sublease, right of way, trust or title retentionagreement, pledge, lien (including any lien for unpaid Taxes), charge, securityinterest or option.

 

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“Losses” means anyand all direct and actual out-of-pocket Liabilities (including any Liabilitiesfor Taxes), losses, damages, settlements, judgments, awards, penalties, fines,costs or expenses (including, without limitation, reasonable legal, expert andconsultant fees and expenses) but excluding (i) any special, indirect,consequential, exemplary or punitive damages (including without limitation,lost profits, loss of revenue or lost sales) and (ii) any legal feesincurred in connection with the dispute resolution process described in Section 9.3.

 

“Non-U.S. BenefitPlans” means each plan, scheme, fund or arrangement of Seller, Varianand/or any of their respective Subsidiaries within the Business operatedoutside the United States which provides Retirement Benefits to or in respectof Non-U.S. Employees, including any such plan, scheme, fund or arrangement whichhas not been disclosed to Purchaser, but not including any mandatory governmentor social security pension arrangements, or any other plans, funds orarrangements operated entirely within the United States or primarily for thebenefit of employees of Seller and its Subsidiaries who are not Non-U.S.Employees.

 

“Non-U.S. Employees”means each Business Employee employed other than in the United States bySeller, Varian or any of their respective Subsidiaries, other than anyemployees considered to be U.S. expatriates by Seller or Varian.

 

“Notifying Party”shall refer to the party hereto whose Indemnified Parties are entitled toindemnification hereunder.

 

“ordinary course ofbusiness” means in the ordinary course of the operation of the Business,consistent with past practices of the Business.

 

“Permitted Liens”shall mean (i) Liens for Taxes, assessments and other governmental chargesnot yet due and payable or, if due, either (A) not delinquent or (B) beingcontested in good faith by appropriate proceedings, (ii) mechanics’,workmen’s, repairmen’s, warehousemen’s, carriers’ or other similar Liens,including all statutory Liens, arising or incurred in the ordinary course ofbusiness, (iii) protective filings related to operating leases with thirdparties entered into in the ordinary course of business, and (iv) Liensthat do not materially affect or detract from the ownership or use of theunderlying Purchased Asset for the purpose it is being utilized for by Selleror its Subsidiaries on the Closing Date.

 

“Person” means anindividual, Business Entity or Government Authority.

 

“Prime Rate” shallmean the rate of interest as announced from time to time by JPMorgan Chase atits principal office in New York City as its prime lending rate, the Prime Rateto change when and if such prime lending rate changes.

 

“Proceeding” meansany claim, action, arbitration, audit, hearing, inquiry, examination,proceeding, investigation, litigation or suit (whether civil, criminal,administrative or investigative) commenced, brought, conducted, or heard by orbefore, or otherwise involving any Governmental Authority or arbitrator.

 

“Purchased Assets”has the meaning set forth in Section 2.1 hereof.

 

“Purchaser MaterialAdverse Effect” means a material adverse effect on the financial or legalability of Purchaser to consummate the transactions contemplated hereby and anyessential documents delivered or entered into in connection herewith.

 

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“Release” shall bedefined as that term is defined in 42 U.S.C. § 9601 (22).

 

“Retirement Benefits”means any pension, lump sum, gratuity or similar benefit provided or to beprovided on or after retirement (including early retirement), death ordisability in respect of an Employee’s employment, but excluding benefitsprovided under an arrangement, the sole purpose of which is to provide benefitson the accidental injury or death of an Automatic Transfer Employee.

 

“Securities Act”shall mean the Securities Act of 1933, as amended.

 

“Seller MaterialAdverse Effect” means any change, circumstance, event or effect that ismaterially adverse to the Purchased Assets or to the business, operations,financial condition or results of operations of the Business, in each casetaken as a whole, provided that none of the following shall be deemed,either alone, or in combination, to constitute a Seller Material AdverseEffect:  any change, circumstance,event  or effect resulting from orarising out of (a) the public announcement of the entering into of thisAgreement or the other Transaction Documents, the pendency of the transactionscontemplated hereby or thereby or any other publicity, leak or rumor withrespect thereto, (b) the performance by Seller or any Other Seller of itsobligations under this Agreement or the other Transaction Documents and anyactions taken by Seller or its Affiliates at Purchaser’s request, (c) generalbusiness and economic conditions, including prevailing interest rates, (d) generalconditions in the industry or market in which the Business is conducted, (e) anychange or development in Laws applicable to the Business or the PurchasedAssets or the enforcement thereof, (f) any change related to the ExcludedAssets or the Excluded Liabilities or (g) any natural disaster or any act ofterrorism, sabotage, military action or war (whether or not declared) or anyescalation or worsening thereof unless, in the case of the foregoing clauses(c), (d), (e) and (g), such changes, circumstances, events or effectsreferred to therein disproportionately impact the Business in a material mannerrelative to the industry or market in which the Business competes as a whole; providedthat in determining whether a Seller Material Adverse Effect has occurred withrespect to changes, circumstances, events or effects resulting from or arisingout of one or more Contracts, it shall be taken into consideration whether suchalternatives or replacements to such Contracts are commercially available oncomparable terms without disruption to the Business.

 

“Seller Plans”shall mean each “employee benefit plan” (within the meaning of Section 3(3) ofthe Employee Retirement Income Security Act of 1974, as amended (“ERISA”)),and each severance, change in control, deferred compensation, retention oremployment plan, program or agreement, each vacation, insurance coverage, disability coverage, disability benefits,death benefits, workers’ benefits, pension, profit sharing, retirement,incentive, bonus plan, program or policy, and each stock option, stockpurchase, and restricted stock plan, program or policy, in each case, underwhich any employee or former employee of the Business has any present or futureright to benefits and under which Seller, Varian or any of their respectiveERISA Affiliates has had or has any present or future Liability.

 

“Seller Products”has the meaning set forth in Section 2.1 hereof.

 

“Seller RetirementPlan” shall mean each scheme, plan, fund or arrangement of Seller or any ofthe Varian Companies, which provides Retirement Benefits to or, in respect ofAutomatic Transferred Employees (not including any mandatory state or socialsecurity plan or Industry-Wide Plan in which any member of Seller participatesfor the benefit or, in respect of Automatic Transferred Employees).

 

“Subsidiary” or “Subsidiaries”of Purchaser, Seller or any other Person means any corporation, partnership orother Business Entity of which Purchaser, Seller or such other Person, asapplicable (either alone or through or together with any other Subsidiary),owns, directly or indirectly, more than 50% of the stock or other equityinterests the holder of which is generally entitled to vote for the election ofthe board of directors or other governing body of such corporation or otherBusiness Entity.

 

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“Tax” or “Taxes”shall mean all taxes, including income, gross receipts, ad valorem, VAT,excise, real property, personal property, sales, use, transfer, withholding,employment, unemployment, insurance, social security, business license,business organization, environmental, workers compensation, profits, license,lease, service, service use, severance, stamp, occupation, windfall profits,customs, duties, franchise and other taxes imposed by any GovernmentalAuthority, and any interest, penalties, assessments or additions to taxresulting from, attributable to or incurred in connection with any tax or anycontest or dispute thereof, and including any Liability for the Taxes ofanother Person.

 

“Tax Return” shallmean any return, declaration, report, election, disclosure, form, estimatedreturn and information statement relating to Taxes, including any schedule orattachment thereto, and including any amendment thereof.

 

“TransferredIntellectual Property Rights” means (a) the Patents identified in Part Aof Schedule 2.1(vii) to the Disclosure Letter, (b) the Copyrights,Industrial Designs, Database Rights and Mask Work Rights identified in Part Bof Schedule 2.1(vii) of the Disclosure Letter, (c) the Trademarksidentified in Part C of Schedule 2.1(vii) of the Disclosure Letter,and (d) the Trade Secrets that are used in the Business and identified in Part Dof Schedule 2.1(vii) of the Disclosure Letter.

 

“Transferred Licenses”means the agreements between Seller or its Subsidiaries and a third partyidentified in Schedule 2.1(ix) of the Company Disclosure Letter.

 

“Transfer Regulations”means the Council Directive 77/187/EEC of 14 February 1977 on theapproximation of the laws of the Member States relating to the safeguarding of employees’rights in the event of transfers of undertakings, businesses or parts ofbusinesses (and its amendments) (collectively referred to as “Acquired RightsDirective”) and the legislation and regulations of any EU Member Stateimplementing such Acquired Rights Directive.

 

“Varian Companies”means Varian, Inc., a Delaware corporation, and its direct and indirectSubsidiaries.

 

**Schedules and Exhibits**

 

The following schedules and exhibits to the foregoing Asset PurchaseAgreement are omitted in accordance with Item 601(b)(2) of Regulation S-K. TheRegistrant will furnish a copy of any omitted schedule or exhibit to theSecurities and Exchange Commission supplementally upon request.

 

Exhibit A: Intellectual Property Matters Agreement

Exhibit B: Bill of Sale

Exhibit C: Assignment and Assumption Agreement

Exhibit D: Local Asset Transfer Agreements

Exhibit E: Escrow Agreement

Exhibit F: Transition Services Agreement

Exhibit G: Symmetrical Supply Agreement

Exhibit H: Service Letter Agreement

 

List of Schedules

 
| Schedule 2.1(i)                | Seller Products                              |
|--------------------------------|----------------------------------------------|
| Schedule 2.1(ii)               | Tangible Assets                              |
| Schedule 2.1(vi)               | Assumed Contracts                            |
| Schedule 2.1(vii)              | Transferred Intellectual Property Rights     |
| Schedule 2.1(ix)               | Transferred Licenses                         |
| Schedule 2.2(xvii)   | Other Excluded Assets                        |
| Schedule 4.1                   | Corporate Existence                          |
| Schedule 4.2                   | Corporate Authority                          |
| Schedule 4.3                   | Governmental Approvals and Consents          |
| Schedule 4.4                   | Purchased Assets                             |
| Schedule 4.5                   | Contracts                                    |
| Schedule 4.6                   | Litigation                                   |
| Schedule 4.7                   | Intellectual Property                        |
| Schedule 4.8                   | Tax Matters                                  |
| Schedule 4.9                   | Compliance with Laws                         |
| Schedule 4.10                  | Environmental Matters                        |
| Schedule 4.11                  | Financial Information                        |
| Schedule 4.12                  | Employees                                    |
| Schedule 4.13                  | Inventory                                    |
| Schedule 4.14                  | Fair Consideration; No Fraudulent Conveyance |
| Schedule 4.15                  | Finders; Brokers                             |
| Schedule 6.6                   | Business Employees                           |
| Schedule 7.1(b)                | Required Consents                            |

 

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